Parker v. Marks

SOMERVILLE, J. The deed of June the seventh, 1879, from Kennedy and wife to Mrs. Parker, the appellant, is admitted, on its face to create in her an equitable separate estate. It is a warranty deed, and was clearly intended, as it purports, to create a fee-simple estate in the grantee. It is contended for the appellee, that the notes executed by Mrs. Parker on October the eighth, 1880, were intended to charge the lee-simple title, or entire property, which the deed purported to convey, and which she then claimed to own, and evidently believed she owned; and that this intention can not be limited to the interest actually conveyed to her by Kennedy, which seems to have been only an estate pur autre vie. The contention-of Mrs. Parker’s counsel, on the other hand, is, that she intended only to charge this life-estate in the lands, and not the remainder in fee, which Kennedy afterwards acquired from Jackson, and conveyed to her in obedience to the obligation imposed by his warranty. It is true, as a general rule,'that a debt contracted by a married woman will be regarded as evidencing an intention on her part to charge only such property as she owned at the time when the contract of indebtedness was made, and not after-acquired property. The debt being void as a personal liability, the presumption is, that she intended to charge her equitable separate estate, because her promise would- otherwise be a vain and nugatory act. A court of equity, accordingly, by resort to a proceeding analogous to one in rem, lays hold of her separate estate as the only [552] means by which the agreement may be satisfied, the promise to pay being presumed as intended to have reference to such property by necessary implication. Our opinion is, that, in this case, the intention must be implied to charge the entire fee of the land.. The deed from Kennedy, executed in June, 1879, purported to convey such a fee. Mrs. Parker was in possession under this conveyance, and claimed to hold such fee. There is nothing from which we can infer that she then " had any reason to doubt the validity of her title. The .deed, moreover, contained a warranty, so that, when Kennedy acquired-the remainder, it vested eo instanti in Mrs. Parker as grantee. There being no intervening equity, this may be made to relate back to the time when the conveyance was executed, which was prior to the date of the notes in controversy. We hold that she intended, under this state of facts, to charge the property, as far as she lawfully could do, not merely her defective title to it, which could be made to appear only by facts extrinsic to the deed under which she held, and of which, as we have said, she does not appear at the time to have been cognisant. It would be a profitless task, for courts to undertake, under these circumstances, to "enter upon an investigation of the alleged defects of the debtor’s title, which might often be discoverable only by the very greatest diligence, and even learning, and which, in fact, the strangers interested might never discover at all. • The embarrassments attendant on such a collateral investigation would be of themselves insuperable. The intention imputed by law being thus to charge the property, and not the debtor’s defective title to it, the only remaining inquiry is, how far can a court of equity lay hold of the property in order to execute such intention. The land sought to be charged, as we have said, is, on the face of the conveyance, an equitable separate estate' — made so by the express terms of the instrument. Presumptively, therefore, it is in toto chargeable for the debt. But a portion of’ the purchase-money which was paid for the land, is shown to have been the statutory separate estate of Mrs. Parker, which she had no power to charge or incumber for her debts, like the one in controversy. The case of Loeb v. McCullough, 78 Ala. 533, is an authority for the proposition, that she had no right to convert her statutory separate estate into an equitable estate, so as to confer on her the power to charge it in the manner attempted. To this extent, a court of equity will decline to subject the'property to.the payment of the debt. The burden is on Mrs. Parker to overcome the presumption, raised by the deed, that the [553] entire property is her equitable estate. This she has only partially done. We have examined the testimony with care, and do not feel justified in drawing the conclusion that more than eight hundred, out of the fourteen hundred dollars of the purchase-money paid for the land, or four-sevenihs of the whole, is satisfactorily shown to have constituted any portion of her statutory separate estate. The five hundred dollars borrowed by her from Hill, and secured by mortgage, did not possess the properties of a statutory estate, for the reason that the mortgage was executed under the authority of the power conferred on her by statute, after the removal of her disabilities of coverture, which made her for certain purposes a femme sole. The execution of this power operated to remove the husband from his statutory trusteeship, pro hac vice. The money borrowed was under her exclusive control, and the husband had no power of management over it. As to it, she had all the powers of a femme sole, and its investment in the land impressed the fund with the characteristic features of an equitable separate estate.—Code, 1876, § 2718; Robinson v. Walker, 81 Ala. 404; s. c., 1 So. Rep; 347; Parker v. Roswald, 78 Ala. 526; Bell v. Locke, 57 Ala. 242. The remainder of the property, or three-sevenths of the whole, we adjudge to be chargeable with the notes executed by Mrs. Parker, as described in the bill of complaint. The chancellor erred in decreeing the entire equity of redemption to be chargeable. No cross-bill, in our opinion, was needed to enable this defense to be asserted. The decree will be, accordingly, reversed, and a decree will be rendered in this court, adjudging the complainant entitled to the relief sought, and subjecting to the payment of said debt three-sevenths of said property — being so much of it as may be deemed the equitable estate of Mrs. Parker. The entire equity of redemption in the property will be sold by the register, under the directions of the chancellor, subject to the superior lien of the mortgage of the defendant Hooper, which shall remain unimpaired; and out of the proceeds1 shall be paid the costs of executing this decree, and of this suit in the court below; and from the balance of the fund the complainant shall be paid three-sevenths, and the defendant Parker four-sevenths, provided the amount paid to the complainant shall not exceed the principal and interest of the debt claimed to be due. • The appellee will be taxed with the costs of this appeal. Reversed and rendered.