Black v. Moseley

COLEMAN, J. The only material question presented by the record is, as to the validity of the decree of the chancellor, proceeding; under section 2731 of the Code of 1876, by which the plaintiff was relieved of certain disabilities of coverture. The decree of the chancellor is in precise accord with the statute. The contention arises upon the sufficiency of the petition, upon which the decree was rendered. The petition states “that she is a married woman, the wife of "William B. Black, that she is of lawful age,” and states the place of her residence. It avers ownership of a statutory separate estate which is particularly described. The petition then states that she has sustained losses by fire, and in order to rebuild, avers that it has become necessary to mortgage her statutory estate to borrow money. The prayer is, “that she be decreed a feme sole for the purpose of, and so far as to invest her with the right of executing a mortgage on her statutory separate estate, and for such further and other relief as the nature and equity of this cause, and the statute in such cases made and provided, loill alloio, ” &c. The assent of the husband conforms to the prayer for relief. The only question is, whether the petition and decree bring the case within the influence of the case of Powell v. New England Mortgage Security Co., first reported in 87 Ala. 602; 6 So. Rep. 339, and subsequently in 94 Ala. 423; 10 So. Rep. 324, and other cases which hold that the relief prayed for and that granted must conform strictly with the statute. In the Powell Case, supra, it was considered, that the peti [450] tion admitted of but two constructions, either of which rendered it obnoxious to the statute. First, that the petition prayed for relief only so far as to authorize the wife to execute a mortgage upon her statutory estate; and, if not given this construction, then it was that she be relieved from “all disabilities of coverture.” Neither construction of the petition gave the court jurisdiction to render the decree, and it was held tó be void. Under one construction only partial relief was prayed for, and under the other, more relief, than was authorized by the statute. Authorities are cited in the opinion. The fact that the petitioner asked for particular relief so as to invest her with the power to mortgage her estate, can not operate to her prejudice, or the jurisdiction of the court, when the prayer for the particular relief is followed by a prayer for all the relief, and no more, nor less, than that provided by the statute, and which general relief, if granted would include the particular relief prayed for. The principles of law declared in the Powell Case, 94 Ala. 423; s. c. 10 So. Rep. supra, and general rules of equity, sustain this proposition.—Mohr v. Senior, 85 Ala. 114; Falk v. Hecht, 75 Ala. 293; Meyer v. Sulzbacher, 76 Ala. 120. The decree of the chancellor relieving the appellant of the disabilities of coverture was founded on a sufficient petition, and the decree itself is in accordance with the statute, and must be held to be a valid decree. After its rendition, the appellant was competent to execute a mortgage. The demurrer to complainant’s bill was properly overruled and, the decree of the City Court is affirmed.