Garrett v. Lehman, Durr & Co.

BBICKELL, C. J. It is true, as insisted by the counsel for the appellee, that the fraud which at. law will vitiate a conveyance as between parties and privies, must relate to its execution, and that no inquiry will be made into the sufficiency of its consideration. — Swift v. Fitzhugh, 9 Port. 39; Morris v. Harvey, 4 Ala. 300. The question presented, however, is not one of fraud, or of the adequacy of the consideration ; it is simply whether husband and wife may by mortgage convey lands, the statutory separate estate of the wife. The deed of a wife at common law, whether executed by her alone, or jointly Avith her husband, Avas so far as she was concerned, and as an instrument of title to her estate, a mere nullity. The husband may by marriage have acquired an interest in the subject of the conveyance, passing by it, if he joined in its execution, but as to the wife, it was AA'itho.ut operation. The statutes and the constitutional provision declaring and defining the separate estate of the wife, strip the husband of all the rights in and to the property of the wife, which he Avould have acquired by marriage at [394] common law, and leave him without any right or interest which may be conveyed or transferred to another. No conveyance by him of the wife’s statutory estate is, as against her, valid in a court of law or in equity. — Patterson v. Flanagan, 37 Ala. 513. The incapacity of the wife to contract, as it was known at common law, has not been removed, though it is to some extent modified. So far as this incapacity is modified, the statute has been regarded as enabling, and the power of contracting, or of disposing of her estate, which she can exercise, must be exercised in the mode which is prescribed. In other words, the wife is sui juris — capable of contracting, only so far as the statute confers power. — Pickens v. Oliver, 29 Ala. 528; Alexander v. Saulsbury, 37 Ala. 375; Warfield v. Ravisies, 38 Ala. 518; Bibb v. Pope, 43 Ala. 190; Wilkinson v. Cheatham, 45 Ala. 337; Fry v. Hamner, 50 Ala. 52; Weil v. Pope, 53 Ala. 585; Peeples v. Stolla, 57 Ala. 53. The power of disposition of the statutory estate, which the wife alone may exercise, is by will. The power of disposition which husband and wife may jointly exercise is expressed in these words : “ The property of the wife, or any part thereof, may be sold by the husband and wife, and conveyed by them, jointly, by instrument of writing, attested by two witnesses,” . “ The proceeds of such sale is the separate estate of the wife, and- may be reinvested in other property, which is also the separate estate of the wife; or such proceeds may be used by the husband, in such manner as is most beneficial for the wife.” — Code of 1876, §§ 2707-09. The power conferred is to sell and convey, and it is sometimes held, when by will or deed, a power to sell and raise a sum of money is conferred, that a power to mortgage, which is a conditional sale, is implied. "Whether this is true of any particular power, depends on the nature of the case, the intention of the parties, the purposes for which the power is conferred and must be exercised. These may render it certain that a sale only, or as it is sometimes said, a sale out and out is contemplated and intended. — 1 Sugden on Powers, 552; Haldenby v. Spofforth, 1 Beavan, 391; Bloomer v. Waldron, 3 Hill (N. Y.) 361. A mortgage is a security for a debt in a court of equity, and not a sale, though in a court of law, it operates as a conveyance in fee. The statute contemplates a sale — a conversion of the property into something else which is to be held as the separate of the wife, or which may be used by the husband as her trustee for her benefit. The purpose is not merely to raise money, but it is a eonver [395] sion into proceeds which are to become the wife’s separate estate — taking the place of the thing sold. The uniform construction of the power has been that it does not include a power to mortgage. — Bibb v. Pope, supra; Wilkinson v. Cheatham, 45 Ala. 337; Fry v. Hamner, supra; Weil v. Pope, supra; Peeples v. Stolla, supra. True, these were cases in equity, in which the wife was seeking relief against the mortgages, but her eapaeity to convey is no greater at law, than in equity, and it is open to inquiry in the one court as in the other. If she had not the capacity of conveying, no title passed by the mortgage, and the plaintiffs claiming under it were without a right of recovery. The court erred in the charge given, and in the refusal to charge as requested. Reversed and remanded. Stone, J., not sitting.