Moses v. Dade

BBICKELL, C. J. It is not now necessary to inquire whether the original bill presents a case within the cognizance of a court of equity, or whether the right and remedy of the complainant was not solely at law. The matter of a plea puis darrien continuance, at law, is often available in equity only by cross-bill, A matter of defense, arising after issue joined, as a release executed by the complainant to the defendant, can be introduced only by cross-bill. — Story’s Eq. PL § 393; Cochran v. Rison, 20 Ala. 463. The cross-bill disclosed that pending the suit, the complainant and her husband had, by deed executed and acknowledged in the form prescribed by the statute, conveyed the premises in controversy to the appellant, Esther. If this conveyance is valid, though it be conceded to the complainant there was equity in the original bill, its operation is. a release of the right involved. In the answer to the cross-bill, (and the allegation is supported by the evidence of the complainant,) it is averred she was deceived into the execution of the conveyance by the fraudulent misrepresentations of her husband, It is hot [214] averred, and is not shown by evidence, that the grantee or her husband, who paid the consideration, was privy to, or informed, or in any way whatever participated in these misrepresentations. The conveyance is executed and acknowledged, and the acknowledgment certified by an officer, the statute authorizes to take and certify the acknowedgment of conveyances of the real estate of married women. If the husband were claiming a right under, the deed, it may be, these fraudulent and false representations would avoid it. The complainant knew she was not conveying to him, but to her adversary in a suit, which, if she did not know or believe was then pending, she knew had been, and if she was misled and deceived by the representations of her husband, she must accept the consequences of her misplaced confidence. They can not be visited on those who dealt fairly and in good faith with her, relying on her solemn acknowledgment before an officer of the law, that informed of the contents of the conveyance, she freely and voluntarily executed it. — Miller v. Marx, 55 Ala. 323. There is not a fact or circumstance to be found in this record, casting the shadow of suspicion on the bona fides of the conveyance, as to the complainant and the grantee, and it is impeached only because the complainant had the folly to rely on the statements of her husband, who, for his own selfish purposes, deceived her. It is very easy to make such an imputation on any conveyance a wife may execute, and it can never be disproved, when made, without the aid of the husband. Such aid will rarely be afforded; and-most often he will, now that a statute opens a door to him, be the ready and convenient witness, to crown himself with dishonor, that the wife may be restored to that of which she had parted, and he restored to partial ownership of it. When husband and wife, on a valuable consideration, execute a conveyance to another, it can not be impeached because of the fraud or undue influence of the husband, (duress not being shown,) in which the grantee does not participate, whieh he has not induced, to which he is' not privy, and of which he is not informed. The decree of the Chancellor must be reversed, and this court, proceeding to render the decree which ought to have been rendered, doth order, adjudge and decree, that the deed of the premises in controversy, made by the complainant Henrietta T. Dade and her husband Morris H. Dade, to Esther Moses, bearing date 17th day of July, 1871, is valid and operative, and is a bar to the further continuance of this suit. It is further ordered, adjudged and decreed, that the defendant, J. Clifton Moses, pay the costs of the original suit, to be taxed by the register, which had accrued prior "to the 17th day of July, 1871, [215] It is further ordered, adjudged and decreed, that the costs of the original suit, accruiug subsequently to the 17th day of July, 1871, and of the cross-bill, in the Court of Chancery, to be taxed by the register, be paid by Whitfield Trower, the next friend of the complainant Henrietta T. Dade. The costs of this appeal must be paid by said next friend.