Helmetag v. Frank

BRICKELL, C. J. 1. We regard it as the settled law of this State, that a gift by the husband to the wife of property real or personal, creates in the wife an equitable separate estate. Property thus acquired by the wife, is not within the influence and operation of the statutory or constitutional provisions which create separate estates. — McMillan v. Peacock, 57 Ala. 127, and authorities cited. An incident of an equitable separate estate, is the power of the wife to alienate or charge it, as if she were a femme sole, unless restrained by the instrument creating it. She may mortgage it as security for her own, or for the debt of her husband. — McMillan v. Peacock, supra. 2. It is also well settled, that the renewal of the evidence of a debt secured by mortgage, is not a payment; nor does it impair the lien of the mortgage. — Boyd v. Beck, 29 Ala. 703. The complainant consequently on the proof was entitled to a decree of foreclosure. 3. To support a final decree, the pleading and proof must correspond, and a variance between them, however clear may be the equity of the complainant, is fatal.— Crabb v. Thomas, 25 Ala. 212; Skinner v. Barney, 19 Ala. 698. The averment of the bill is that the husband was seized in fee of the premises, and that he and the wife alleged that he was seized in fee. The latter averment is immaterial and must be rejected as surplusage. The material fact which should have been stated, was as to the title of the wife, and that it was a title, which notwithstanding her coverture, she had capacity to transfer by mortgage. The title shown by the bill resided in the husband at the execution of the mortgage ; and though the wife may have joined in its execution, the legal consequence is, that thereby only her contingent right of dower was conveyed. The proof shows that the title resided in the wife, under a conveyance from the hus [70] band, creating an equitable separate estate, she had the capacity to charge by mortgage. The variance compels a reversal of the decree. Reversed and remanded.