Lammons v. Allen

OLOPTON, J. It appears from the writings, which are made exhibits to the bill and answers, that Mrs. Lammons puchased the land in controversy, December 17, 1883, from the Southern Development Land and Immigration Company, at the price of one hundred and fifty dollars, one-third of which was paid in cash, and for the other two-thirds she gave two notes of fifty dollars each, payable, respectively, on the 17th day of June and December, 1884. The company gave her a bond, conditioned to make titles on the payment of the notes, and on their payment executed a conveyance in her name, December 8, 1884. On March 21, 1884, Mrs. Lammons and A. A. Lammons, her husband, executed to appellee the mortgage which he seeks by the bill to foreclose, to secure a note for four hundred dollars, made by both of them, and payable June 1, 1885. In defense of the bill, Mrs. Lammons sets up, that the land is her statutory separate estate, which she is incapable of mortgaging. The transactions occurred before the passage of the act of February 28,1887, defining the rights and liabilities of husband and wife, and are therefore governed by the principles of the common law, and the statutes regulating the separate estates of married women, then in force. It may be conceded that the chancellor erred in decreeing a trust resulted to complainant, and on this basing his right to a foreclosure of the mortgage. — Bolman v. Lobman, 74 Ala. 507; Chapman v. Abraham, 61 Ala. 108. If admitted to be erroneous, it would not necessarily avail a reversal; for, independent of this, there are considerations and equitable principles, on which the correctness of the final decree may well be founded. It is true, a married woman may purchase land during coverture, with the assent of her husband, or, if without his assent, subject to his disaffirmance seasonably expressed) [420] and that a purchase so made, and a conveyance in her name, create in her a separate estate, though the purchase-money may be paid with the means of her husband. When the husband pays for land, during coverture, and the conveyance is taken in the name of the wife, it will be regarded that an advancement or provision for her was intended. — Harden v. Darwin, 65 Ala. 55. The property so paid for is subject, in all events, to the existing debts of the husband; and if made with a fraudulent intent, the conveyance is void as to his subsequent creditors. In order, therefore, that the property be protected against existing demands, it must be shown that the purchase-money was paid with funds not furnished by him. Complainant’s debt was contracted before the notes for the purchase-money were paid, and before the deed was executed to Mrs. Lammons. There is no evidence whatever tending to show that she ever had a separate estate of any kind, or that the purchase-money of the land was not paid with means of the husband. In the absence of such proof, the presumption is, that the means of payment were provided by him. — Booker v. Waller, 81 Ala. 549. The general rule, that a mortgage of a married woman’s statutory separate estate is a nullity, which prevailed under the statute in force at the time the mortgage in controversy was made, is not applicable in all cases, nor under all circumstances. There áre exceptional cases, in which the validity of the mortgage will be upheld in equity. The validity of the mortgage, in such cases, does not rest on her capacity, but on the equitable rights of the mortgagee, apart from the mortgage, in respect to the particular property, their superiority to the equity or title of the married woman, and their relation to, or connection with the particular debt, to secure which the mortgage was executed. On this principle, a mortgage of lands purchased by a married woman, made to the vendor, is in equity a valid security for the purchase-money. Complainant, being an existing creditor, and the presumption being that the land was paid for with means furnished by the husband, it was subject to the payment of his debt; and as Mrs. Lammons, by joining in the mortgage, only appropriated it to the same purpose to which equity would have compelled its appropriation, the mortgage will be upheld and enforced in equity, as a valid security. Affirmed,