Falk v. Hecht

BRICKELL, 0. J. The statute (Code of 1876, §§ 2707-9) authorizes husband and wife, by instrument in writing, attested or acknowledged as the statute directs,‘to sell and convey the statutory separate estate of the wife. As has been frequently said, the statute contemplates a sale, a conversion of the property of the wife into money, which may be re-invested in other property, or which may be employed for her benefit; or into [295] that which is the equivalent of the property, and upon which, whether it be money, or property of some other species, the statutory uses and trusts are impressed. The power to sell does not include the power to mortgage, whatever may be the consideration of the mortgage, or of the debt it is intended to secure.—Garrett v. Lehman, 61 Ala. 391; Gilbert v. Dupree, 63 Ala. 331. The instrument now impeached, purporting to be executed by the wife alone, and to convey lands, her statutory separate estate, as a security for the payment of a debt, is, of consequence, void, because of her want of capacity to execute it. It is also void, because the husband is not a party to it, and does not join in its execution. In this State, the separate estate of a married woman in lands, whether the estate is equitable or statutory, can not be conveyed or divested by any deed or instrument, in the execution of which the husband does not join.—Waddell v. Weaver, 42 Ala. 293 ; Ellett v. Wade, 47 Ala. 456. It is insisted, however, and such was the view of the court below, that the decree of the chancellor relieving Mrs. Falk of the disabilities of coverture, so far as to invest her with the right to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as a feme sole, empowered her to execute the mortgage without the concurrence of her husband. Such, it may be admitted, is the effect and operation of the decree, if it is valid' — if the chancellor had power and jurisdiction to render it. The power or jurisdiction, if it exists, must be derived from the statute. — Code of 1876, §§ 2731-2. The statute is a delegation to the chancellor of power in its nature not strictly judicial; it is a part of the general prerogative power of the General Assembly to define or to change the legal status of citizens, upon whom the general law had imposed special disabilities. Like all other statutory powers, it must be exercised in the mode, and for the purposes the statute may appoint and declare. A petition, or an application in the nature of a petition, filed by the wife through her next friend, is the mode of calling the power or jurisdiction into exercise. The petition or application must disclose the facts which authorize the court to proceed to the rendition of decree. If the wife be not the actor, or if she is the actor, and the petition does not disclose the facts upon which the court is authorized to proceed to the rendition of decree, all subsequent proceedings are invalid; they are eoram non judiee.—Cohen v. Wollner, 72 Ala. 233. The power to hear and determine a cause is jurisdiction; and it is eoram judiee, whenever a case is presented which calls the power into exercise. But, when a judicial tribunal is in the exercise, not of its original, inherent power or jurisdiction, but of a power or jurisdiction strictly [296] statutory, which it could not exercise if a statute did not expressly confer it, the principle is too well settled to be discussed, that the jurisdiction can not be affirmed to exist, until it is made to appear that the requirements of the statute have been pursued; nothing is intended to be within the jurisdiction, except that which affirmatively appears.—Foster v. Glasener, 27 Ala. 391; Gunn v. Howell, Ib. 663. The petition upon which the decree is founded, filed by the wife, avers her citizenship and that of the husband, and that she is the owner of lands described, which are her statutory separate estate. The further allegation is, that-she desires to. invest her means in the purchase of a stock of goods and groceries, and that unless she can mortgage her lands, she can not make the investment. The prayer is, that the chancellor will render a decree, “declaring her a free-dealer, relieving her from the disabilities of coverture as to her said statutory separate estate, so far as to invest her with the right to mortgage the same to enable her to invest her means in purchasing a stock of goods and groceries.” A comparison of the petition with the statute, or with the decree which was rendered, is sufficient to show that the wife did not seek or claim the exercise of the power or jurisdiction the statute confers, but the exercise of a power which is not conferred. The capacity to. engage in business, to become a sole trader, which is the capacity the wife claimed, the chancellor had not jurisdiction to confer. Nor had the chancellor jurisdiction to confer the capacity to mortgage lands, solely and separately. The decree rendered may conform to the statute — it may confer upon the wife the capacity to mortgage her lands, as well as the capacity to buy, sell, hold and convey real and personal property, and to sue and be sued as a feme sole. But, in this latter respect, the decree passes beyond the petition, confers capacity and works a change in the status of the wife, to which she did not express her assent, as the statute requires its expression, and which the chancellor could not impose upon her in invitum. As well, without the petition of the wife invokiug the exercise of the statutory power and jurisdiction, might the chancellor have proceeded to the rendition-of the decree, as to have proceeded upon a petition not showing affirmatively that the wife claimed the relief the statute authorizes, but other and essentially different relief.—Ashford v. Watkins, 70 Ala. 156. The decree is invalid; it did not operate to relieve the wife from the disabilities of coverture. As a consequence, the mortgage is void, a cloud upon the titlp, which a court of equity ought to remove. Let the decree of the chancellor be reversed, and a decree will be here rendered granting the complainant appropriate relief.