Nicholson v. Heiderhoff

Simeall, J., delivered the opinion of the court. In the deed conveying the house and lot to Mrs. Heiderhoof, there is reserved a lien to secure the purchase money. She, with her husband, contemporaneously with the date of the conveyance to her, also mortgaged the premises to Nicholson, the complainant’s intestate, to secure the debt represented by the promissory notes of her husband and herself. The bill brought by the executrix of the vendor, sought a foreclosure of the equitable lien reserved in the grantee’s deed, and also the mortgage for the payment of the last three notes of $300 each, the first one having- been paid. In their answers, both Mrs. Heiderhofi: and her husband allege that be signed rhe notes, not as surety for her, or to be bound thereby to pay the money, but under a mistake of law, that such act was necessary to give his consent to the purchase. Mrs. Heiderhofi: sets up her coverture, as conclusive reason that the transaction of purchase, the notes and mortgage, are void in law and equity, and cannot be enforced against her. The husband relies upon the same defense, and in addition, sets up that he had paid the notes by work and labor done for the testator. The bill contained the prayer for general relief, in these words: “ And if in any or all this, your oratrix is mistaken in anywise, then she prays for such other and further relief as her cause may require, and as to equity and good conscience may seem meet.” Under the statutes respecting married women, and their separate estates, it has been held in repeated decisions, that the disability of coverture is as at common law, unless the married woman has a separate estate. That her power of disposition, or [65] to charge or bind her separate property, or to incur debts to be satisfied out of it, is defined and limited by the statutes; and that thus far, she has legal capacity, enforceable out of the estate in a court of law. The 25th art. Laws 1857, p. 72, expressly authorizes her to “ purchase property, real or personal,” but the immediately ensuing clause intends that she must pay presently the money. Whitworth v. Carter, 43 Miss., 72. She can not obligate herself to pay for property bought upon a credit. Foxworth v. Bullock, 44 Miss., 457. The principle may be stated in this form. An obligation or promise to pay for property, bought on a credit, is not embraced in that class of contracts, mentioned in the statute, and is not enforceable out of her separate estate. If such a liability is incurred, the wife may set up her disability as absolving her from it; which is a defense against the debt, and any security which may accompany it. More is implied, when she is sued in chancery upon the express lien reserved by the vendor, or upon the mortgage to secure the notes for the purchase money — and relies upon coverture in bar of the relief — than a decree, absolving her from the debt. It is on her part a repudiation of the whole transaction, as well the conveyance by the vendor, as her notes and mortgage. In such a case it would be grossly inequitable to release her from the debt and mortgage, leaving the vendor embarrassed, with a deed outstanding in her favor. The defense applies to each element of the bargain and sale, and one part should not be left operative whilst the others are cancelled, if the mortgage and notes are cancelled; the same result ought to be declared in reference to the conveyance made by the vendor. Mrs. Heiderhoff had her election, either to recede from her bargain, and claim its annulment, or to allow it to stand with a right in the complainant to subject the property to the payment of the debt; beyond that the complainant could not go, and coerce payment out of her other property, when the mortgaged property was exhausted ; there was no right at law or equity, to [66] proceed against her other estate. If the property on a sale realized. more than the debt, then the defendant would be entitled to the surplus. She will not be tolerated to plead her disability, in annulment of her obligations and security for the purchase money, and at the same time retain the legal title to the estate. Gordon v. Manning, 44 Miss. Rep., 756. It would hardly be.controverted, that if Mrs. Heiderhoff had by plea of coverture defeated a recovery at law on the notes, that then the vendor .or his heirs could have brought a suit in equity for the cancellation of the deed to her. If she asserts the same defense to the suit in equity, to apply the lien security to the satisfaction of the notes, the litigation is pending in a forum with ample powers to adjust its decree, so that complete justice may be done. There could be no obstacle in the way of declaring the conveyance to her inoperative and .of no effect, as well as her notes and mortgage, unless it be a want of adaptation, and fitness in the pleadings for such a decree. The general rule is that although the specific relief asked may not be granted, the complainant may have any other redress, warranted by the. case made in the bill, and the principles of equity. This bill discloses that the sale and conveyance was made to a feme covert, ánd her securities taken for the purchase money. It. might have been better pleading to have prayed in the alternative, for a foreclosure of the liens, if the defendant stood by her contract ; but if she choose to disaffirm it, then that the conveyance to her be cancelled, and possession acquired under it be restored. But it is consistent with the case made in the bill, if Mrs. Heiderhoff elects to avoid the purchase of the property, to pronounce a decree avoiding the entire contract in all of its parts and members. The complainant makes every allegation necessary to be made, either to enforce the liens or to avoid the conveyance of her testator. It remained with Mrs, Heiderhoff, in her answer, either to let the purchase stand good and the liens operative, or to repudiate the whole matter. If the decree had stopped with the declaration of invalidity as to the notes and liens, then another suit or [67] suits would have been necessary to annul the conveyance to her, and be restored to possession, and yet in such a suit, not a single fact, in addition to those embraced in this record, would have been requisite to the granting of the relief. The sale and conveyance of property to a married woman, on a credit, is a voidable contract on her part. She may make the payments, whereby the act becomes complete and executed. If the vendor seeks relief in equity, on any security reserved or made by her, the decree will be framed so as to conform to the election which she may make in her answer. Suppose she has paid two-thirds of the price, and that the property is worth two or three times as much as the balance of the debt. Manifestly her interest would be promoted by recognizing the sale and permitting the lien to stand for the unpaid balance, for if the property went to a sale, the large excess, after satisfying her debt, would go to her. If the property is of less value than the debt, she can suffer no harm by a foreclosure of the lien, for the deficit can not be charged upon, or collected out of her separate estate. By the character of the defense made in this case, we must assume that Mrs. Heiderhoff did not consider the property worth more, if as much as the balance due upon it. She therefore preferred the annulment of the contract. Coverture is a personal disability, to be availed of by the feme covert If Mrs. Heiderhoff and her husband had sold and conveyed the house and lot to a third person, the alienee could not have defeated the lien which her vendor had taken, on the allegation that his vendor was covert. The alienation would be taken as conclusive waiver 'of the privilege of disability; and the incumbrances which were voidable as to her become conclusive upon her vendee. ¥e think substantial justice has been done by the decree, wherefore, it is affirmed.