Curry v. American Freehold Land Mortgage Co.

HEAD, J. On Nov. 28, 1877, F. L. Hammond, being indebted to the complainant, Bettie H. Curry, who ■was his daughter, in the sum of $1,377.18, and to Bur-well J. Gurry, her husband, in the sum of $12,330.15, conveyed, by deed, to said Burwell J. the lands which fornn the subject matter of this suit, in payment of the latter indebtedness, but declaring, in the deed, by appropriate words, a prior and paramount charge or lien xxpoxx the lands-in favor of the complainant, the said Bettie H., for the security of the said indebtedness to her. • ,TOn May 7, Í886, the said Burwell J. Curry bon*owed of the defendant, The American Freehold Land Mortgage Company of London, Limited, the sum of $10,000, — 435 — and to secure the payment of the same, in stipulated instalments, together with interest coupons attached, executed to that company a mortgage on said lands. Mrs. Curry, the complainant, described as the wife of the said Burwell J., joined in the execution of this mortgage,' and acknowledged the same in the manner required by law to bar the husband’s homestead, as well as in the general form prescribed by the statute for the acknowledgment of conveyances. Among other special stipulations not necessary to be noticed, the mortgage contained general covenants of seizin, warranty and against incumbrances. At the same time, they executed a second mortgage on the premises to Jos. H. Sloss, to secure a debt of $1,000. This mortgage need not be further noticed. Burwell J. Curry made default in the payment of the $10,000 mortgage, and the company proceeded to foreclose under the power of sale, and advertised the lands for sale on a specified day; sold the same and itself became the purchaser. Mrs. Curry filed her bill to enforce her lien on the lands secured to her by the deed of Hammond to her husband, as a prior charge, and the sole question, as the case comes before us, is whether she waived her paramount lien by joining with her husband in the said mortgage. Upon two considerations it seems very clear to us that she is not estopped. 1st. It is not questioned, as the written application for the loan made by Burwell J. Curry shows, that the loan was to him individually. He was tho legal owner of the lands, and they were mortgaged, as his property, to secure the loan. To perfect the security it was necessary that the wife release her dower, and sign the conveyance so as to bar the husband’s homestead. Section 1894 of the Code of 1886, provides how dower may be relinquished. It provides that the wife may relinquish her dower in land by joining with her husband in a conveyance thereof, or by joining with her husband in a power of attorney authorizing the attorney to convey the lands, or subsequently to a conveyance thereof by the husband, by a separate instrument executed by her alone ; and in either case, her signature must be attested by two witnesses who are able to write, or acknowledged by her according to the form prescribed for the acknowledgment of other conveyances in this State ; and section 1899 provides, that “Neither the wife individually, nor — 436 — lier separate estate, is bound h}*-the covenant of warranty-contained in any deed conveying land belonging to the husband, executed by such wife in connection with her husband; but such deed shall have the effect only of a relinquishment of dower, unless there be in the deed a special covenant of the wife, expressing her intention to bind her separate estate.” Under these provisions, there would seem to be no room for doubt that no effect can properly be accordod to the execution of the mortgage by Mrs. Gurry jointly with her husband, other than the relinquishment of dower, and effectuate a valid alienation of the homestead. In legal effect, she is not a covenantor in the covenants of seizin, warranty and against encumbrances, contained in the instrument. Those covenants proceed from, and bind, the husband alone. Such is not Only the provision of the statute, above copied, properly construed but it was so held upon general principles of law, independently of an expressed statutory provision. In Gonzales v. Hukil, 49 Ala. 260, we said: “The joint conveyance of land by husband and wife, as his property, does not estop the wife from sotting up a title subsequently acquired. She is not sui juris, except to relinquish her dower,” citing Tyler on Inf. & Gov.. 316; Jackson v. Vanderheyden, 17 Johns. 167; Teal v. Wordsworth, 3 Paige Chan. 470. Relinquishment of the dower, and of tlio homestead, being then the solo purpose and effect of tho wife’s joining in the instrument, there can be neither conveyance by warranty nor quitclaim, by virtue of such a deed, of any right or interest held by her, other than dower, in the premises conveyed. To have the contrary effect, there must, at least, be a special stipulation on the part of the wife, expressly showing an intention on her part to part with her interest in the land. The indebtedness of Mr. Ham-mond to complainant and the trust created for its security, was the statutory separate estate of Mrs. Gurry, governed by the statute laws of Alabama, then in force, as distinguished from a separate estate by contract, known at the common law, and which was not displaced by the statutory system then obtaining. Such was the status of the estate until the new married woman’s law of February, 1887, was enacted, which wrought very material changes in the old law. The transactions involved in the present controversy — 437 — having taken place prior to the enactment of the new law, the rights of the parties are governed by the old. Perhaps no subject of our (lode of statute law underwent more frequent exposition by this court than the old married woman’s law above referred to; and one principio settled by an unbroken line of our decisions, during the long period of the law’s existence, is, that a mortgage made by a married woman, with or without her husband, of her statutory separate estate (except for the purpose of securing purchase money of the land mortgaged) was null and void, inoperative as a conveyance at law, or an estopol in equity. ’Phis principle is too well understood in this State to be now .discussed. We are referred to the case of Wilder v. Wilder, 89 Ala. 414, and it is insisted for appellee that the decision there is authority for the proposition that the mortgage in which Mrs. Gurry joined, operates to estop her to assert her equity. ' We do not so understand the case. Indeed, Judge Somerville, in delivering the opinion, fully recognizes the principle we mention. After showing that a deed of a married woman of her statutory separate estate, not executed in conformity to statutory authority, is a nullity as a conveyance, he proceeds upon the subject of estoppel, to use this language: “The reasons upon which these decisions rest is that the statute prescribes and restricts the mode of alienation by married women of their separate estates ; and to allow title to be conferred by equitable estopel would introduce a new mode of alienation different from that thus prescribed, and would result in sanctioning indirectly the conveyance by feme* covert of their property when they were prohibited by statute from doing directly the same act in the mode attempted.’’ Several of our decisions are cited. There is nothing in the opinion evincing the least purpose to overturn this doctrine or the decisions which support it. The case was withdrawn from its operation by its peculiar facts. Mrs. Wilder and her husband, in pursuance of the statute, sold a tract of land to Sydney T. Wilder, for part cash and part on time. The deferred purchase money constituted, if not legally waived, a.vendor’s lien on the land in favor of Mrs. Wilder. To enable the purchaser to borrow the money of a loan company with which to make the cash payment, it was agreed by all parties that the company should take a paramount — 438 — mortgage on the land to secure the loan, and that Mrs. Wilder should take a second and subordinate mortgage to secure the deferred purchase money, thus waiving her vendor’s lien in favor of the loan company. She after-wards filed her bill to assert a paramount lien as vendor, and the question was whether she was estopped. The court, holding that she was, placed its decision upon the ground that, by the statute, a married woman, by the joint deed of herself and husband, could lawfully make absolute sale of her separate property; that this power carried with it authority to sell on credit, and secure the payment of the purchase money by such means as the parties might agree upon ; and, therefore, as an incident to the power to sell, it was competent for the wife, to enable the purchaser to raise the money to make the cash payment to her, to accept a second mortgage in lieu of the retention of her paramount lien as a vendor; and this having been done she was denied relief. It is manifest there Is nothing in common between that case and the present. Then, if it were conceded that the mortgage in question could be treated as the deed of Mrs. Curry, purporting to convey, by warranty, the land, as her property, and not, on its face, a mere relinquishment of dower and homestead, its utter invalidity, under the statute, must necessarily be pronounced. There is, in the covenants of this mortgage, no element of misrepresentation of fact, as suggested by counsel, upon which the mortgagee was induced to rely, which renders Mrs. Curry’s repudiation of them, if they had proceeded from her, tortious in its nature. They (those referred to by counsel) are the covenants of seizin, warranty of title and against incumbrances usually found in deeds and mortgages of real estate, and are purely contractual in their nature. It has never been supposed that the breach of one or all of these covenants, influenced by no other misrepresentation of fact, constituted a fraud on the part of the covenantor which justified dealing with him as a tort feasor. The chancellor’s decree was not in accord with our views and must be reversed. The cross bill of the defendant company, to marshal the assets was dismissed by the chancellor, and there is no cross appeal; hence, that matter is not before us. A cross bill is essential to obtain the relief sought. The dismissal was, however, — 439 — without prejudice and we will remand the cause that the defendant company may, if so advised, refile its cross bill, and, if the facts justify, have the assets marshalled. We have given no consideration to the merits of that branch of the case, and do not intimate that the present record makes a case for the relief sought by the cross bill. The chancellor will, on the hearing, render a decree establishing the superiority of complainant’s lien, and decreeing her appropriate relief, and, jf the pleadings and proof then so require, let the assets be so marshalled as that justice will be done, lleversed and remanded.