Collier v. Alexander

McCLELLAN, C. J. Prior to 1887 the statute confined the husband and wife’s power of alienation of her land to a sale, and provided the uses to which the proceeds of the sale should be devoted. — Bevised Code, § § 2373, 2374. The act of the year named, “To define the rights and liabilities of husband and wife,” confessedly was intended and obviously has the effect to enlarge the wife’s capacity in respect of her property. By it she is given the full legal capacity to contract as if she were sole, with the assent or concurrence of her husband expressed in. writing. By it also the general power to alienate her lands is conferred upon her Avith the assent and concurrence of the husband, evidenced by his joining in the conveyance. There is nothing in the text of this statute nor any consideration that can be evolved out of its policy to enforce, or even persuasive to a conclusion which would limit the power thus given to alienations by sale or to conveyances in effectuation of sales. The essential word employed, “alienate,” applies as well and aptly to all conveyances of title as to those conveyances which are made upon, a sale. A deed of trust to secure a debt conveys the title to the trustee. A mortgage carries the title to the mortgagee. And each is as much an alienation of land, and Avithin a power to alienate land as is a conveyance in fee to a purchaser. This is Avhat the statute of 1887 meant when it was enacted. The fact that the legislature subsequently saw fit to amend it by adding the Avords “or mortgage” after the Avord “alienate” could not have the effect to take from the latter word as it Avas originally employed any part of its meaning in the act of 1887. At most that was a mere legislative construction or interpretation of an existing statute Which is not binding on the courts in dealing with the original statute. But it is probable that the legislature itself did not intend to commit itself to that construction, but enacted the' amendatory statute merely out of abundant caution, and to clear up all doubt that might have arisen upon the decisions of this court under the married womans’ statutes prior to 1887 to the effect that the poAver of sale .there conferred did not embrace the poAver to mortgage. So we are of the opinion that [428] the act of 1887 conferred upon married women the unlimited power of alienation so far as the character of the conveyance is concerned, the power to alienate by conveyance to secure her debts as well as bjr conveyances in fee upon a sale. At the time of its execution, therefore, though prior to the amendment to which we have referred, Mrs. Collier had capacity to convey the land here involved to Stone in trust to secure the payment of her debt to the Rome Fire Insurance Company, and her husband being a non-resident it was not necessary that he join in the execution of the deed of trust, so it is unnecessary to consider whether there was a joinder of the husband in the conveyance. The plea of not guilty, involving, as it did, confession of lease, entry and ouster, left the plaintiff with the burden only of proving title and right of possession on one of the alleged lessors. We are of opinion that this burden was discharged beyond controversy in respect of the lessor, N. M. F. Alexander. There is no question but that the Rome Fire Insurance Company was the beneficiary in the deed of trust, though the party named as such was its secretary and treasurer. That company had a right to transfer its debt secured by the instrument and the security, so to speak, which the deed of trust afforded. The corporate seal attached to the instrument of transfer is a sufficient testimonial of the authority of the person who signed the corporate name as its president to so execute the paper. After such transfer the secretary and treasurer of the company ceased to have ihe authority conferred on him by the deed of trust to make demand in writing upon the trustee to take possession of the land and sell it in execution of the trust. If the trustee was then under any control in respect of such execution. it- was the control of Mrs. Alexander, the transferee of the debt and security. The trust having been executed and Mrs. Alexander having become the purchaser at the sale made in its execution, it is presumed that' the execution was according to her desire, and also that her wish or demand was properly and regularly made known to the trustee, if that be important. The purchase thus [429] made by her consummated by the deed executed to her by the trustee vested in her the legal title to and the right to the immediate possession of the land. Of course, it was originally open to Mrs. Collier, to, show that this deed of trust was void because executed to secure the debt of her husband; but the issue tvas fore - closed against her by the decree in chancery introduced in evidence on this trial, whereby it was adjudged that the deed of trust was not executed to secure the husband’s debt, and was a valid conveyance of her land. That decree was appealed from, and the appeal was pending at the time of the trial of this case, but it does not appear that it w.a,s superseded pending the appeal. It ivas not a void decree, as counsel contend, nor even erroneous, as has since been decided by this court. The trial court did not err in receiving the record in that case, and the opinion of the chancellor showing precisely what was decided, in evidence; nor in thereupon excluding the defendant’s proposed'evidence touching the issue which the decree adjudicated. The uncontroverted evidence showing title and right of possession' in N. M. F.- Alexander in whom one of the demises declared on was laid, the plaintiff was entitled to the affirmative charge; it is unnecessary to consider other rulings of the City court on the trial. Affirmed. Tyson, Simpson and Anderson, J. J., concurring.