Prior v. Loeb & Bro.

COLEMAN, J. The appellees instituted the statutory action of ejectment. J. T. Prior OAvned the lands in controversy, and he and his wife, on the 27th day of April, 1880, executed a mortgage with covenants of warranty, to G. C. Collier & Son. This mortgage was regularly foreclosed by a decree of the chancery court in November, 1888, and at the sale G. C. Collier became the purchaser and acquired the title. On December 5th, 1890, G. C. Collier and wife executed a mortgage on the ■same lands to The Troy Fertilizer Company, Avhich mortgage by apt words to convey the legal title, Avas transferred to J. Loeb & Bro., plaintiffs. In December, 1889, J. T. Prior and his wife Elia Prior conveyed the same lands to the defendant, W. W. Prior, with covenants of Avarranty. It will be seen from the foregoing statement of facts that at the time of the execution of the deed by J. T. Prior and Ella Prior, his wife, to W. W. Prior, [452] neither of the grantors owned any interest in the land. In June, 1896, J. Loeb & Bro., who by foreclosure of the mortgage transferred to them had become invested with the legal title to the land, executed a conveyance with covenants of warranty to Ella Prior, wife of J. T. Prior, and subsequently and before the bringing of the suit, she reconveyed the lands to J. Loeb & Bro. We have stated the titles of both plaintiffs and defendant. The only ground of contention is, that the deed by J. T. Prior and Ella Prior executed in 1889 to W. W. Prior, the defendant, being a deed with covenants of warranty, the subsequent deed of J. Loeb & Brother to Ella Prior enured to the benefit of their vendee, W. W. Prior. Section 1514 of the Code of 1896 is as follows r “Neither the wife individually, nor her separate estate is bound by 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 such deed a special covenant of the wife, expressing her intention to bind her separate estate.” This section was construed in Curry v. Land Mortgage Co., 107 Ala. 429, in which the case of Gonzales v. Hukil, 49 Ala. 260, was quoted from and cited with approval. We fail to discover any distinction in the principle declared in these cases and the one applicable in the present case. Although the present married woman’s law was not in existence at the rendition of the first opinion, the statute limiting and regulating-the legal effect of the covenants of warranty of a married woman, who joins Avith her husband in the execution of such a deed, was the same. The principle declared in tli e Gonzales case, is directly applicable to the facts of the present case. We find no error in the record.