Dibrell v. Carlisle

Peyton, J.: This was an injunction bill brought by the appellant in the chancery court of Chickasaw county, to restrain the appellees, E. K. Carlisle and H. G-. Humphries, from executing a power of sale contained in a mortgage given to them by Williams F. Walker and Eliza it. Walker, his wife. The material facts of the case are these : William F. Walker, being indebted to his wife, Eliza R., in a large amount of money,, on the 4th day of December, 1866, conveyed to one Thomas J. Denton certain real and personal estate, situated in the said county of Chickasaw, in this state, in trust for the use of the said Eliza R. Walker and the heirs of her body forever ; which deed of conveyance was duly acknowledged and recorded. That on the 20th day of March, A. D. 1867, the said William F. Walker and Eliza R., his wife, made and executed their deed of mortgage of six hundred and seventy acres of the land, covered by the- said deed of trust, to said Carlisle & Humphries, to secure the payment of a promissory note for $7,337.64, made by said Walker and wife, dated the 19th day of January, 1867, and payable to said Carlisle & Humphries on the 19th day of December, 1867. The said mortgage deed, which was duly acknowledged and recorded, gives to the mortgagees a power of sale of the mortgaged property in default of payment of the note at maturity. The note not having been paid, the mortgagees were proceeding to sell the property, when they were enjoined from so doing by the appellee, who was appointed trustee, under a power iu the deed creating the trust estate, to succeed the original trustee, who had resigned the trust. The appellees, Carlisle & Humphries, in their answer admit the conveyance in trust as set forth in the bill of complaint, but deny that there was any valid consideration therefor, and insist that it was made to hinder, delay and defraud creditors. They admit the execution of the mortgage stated in the bill, and insist that they had a rignt to sell the mortgaged property to pay the amount due on the debt therein specified. They aver that the amount specified in the said note and mortgage was actually advanced by them to the said W. F. and E. R. Walker for the necessary supplies of the plantation of the said Walker and wife, and that they believe that the said money was used by the said — 705 — Walker and wife for the use and benefit of the said E. It. Walker and her children, and that the advances were made solely on the credit of Mrs. E. It. Walker, and not on that of her husband, who was insolvent and unable to obtain credit at the time the advances were made. The appellees, Carlisle & Humphries, moved the court below to dissolve the injunction on bill, answer, exhibits and proofs. The motion was sustained and the injunction dissolved. And from this decree the cause is brought to this court by appeal on the part of the appellee.' This record presents three important questions for our consideration : 1. What interest does Mrs. Walker take under the conveyance to a trustee for the use of herself and the heirs of her body forever ? 2. Where the wife has joined with her husband in a mortgage of her separate estate to pay the debt of her husband, can the corpus of that estate, under the existing laws, be subjected in a court ef equity to the payment of such debt P 3. Is the separate estate of Mrs. Walker liable in equity to the payment of the debt specified in the mortgage or any part thereof ? The first question involves the construction of the limitations in the deed creating the trust estate. It is a common maxim that equity follows the law : Equitas sequitur legem. Where a rule of the common or statute laW is direct and governs the case with all its circumstances or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it. A court of equity cannot disregard the canons of descent. In general, in courts of equity, the same construction and effect are given to perfect trust estates as are given by courts of law to legal estates. The incidents, properties and consequences of the estates are the same. The same restrictions are applied as to creating estates and bounding perpetuities and giving absolute dominion over property. The same modes of construing the language and limitations of the trusts are adopted. 1 Story Eq. (Redf. ed.) 53-55, \ 64. The words “ heirs of the body,” in the conveyance of a legal estate, are words of limitation of the estate to the donee, and not words of purchase for the heirs of the body. • Warren v. Haley, — 706 — S. & M. Ch. 647. These words create an estate in fee tail, which, by our statute, is converted into an estate in fee simple. Rev. Code, 307, art. 3. And if it be true that the same modes of construing the language and limitations of trust estates are adopted, as apply to legal estates, we'cannot resist the conclusion that Mrs. "Walker takes, under the terms of the deed, the entire trust estate absolutely. With regard to the second question it may be remarked that it is a familiar rule of equity jurisprudence, that general debts or general personal engagements of a married woman, contracted during coverture, are not chargeable upon her separate estate; and unless a feme covert who contracts a debt or enters into an engagement designs that such engagement or debt shall constitute a charge upon her separate estate, a court of equity will not entertain jurisdiction to enforce payment thereof out of such separate estate. When real property is conveyed absolutely to the separate use of a married woman, she can dispose of the trust estate only in the mode and manner prescribed by the instrument creating the trust estate, and if none be prescribed and limited therein, then in accordance with the provisions of the statute. Prior to the adoption of our present Code, in 1857, it has been repeatedly decided by this court that the wife may bind the corpus of her separate estate, by deed in trust or mortgage, as a security for the debts of her husband. James v. Fisk, 9 S. & M. 144; Sessions and wife v. Bacon, 23 Miss. 272; Armstrong v. Stovall, 26 Miss. 280; Russ v. Wingate, 30 Miss. 445; Stone v. Montgomery and wife, 35 Miss. 83-105 ; Prewett v. Land, 36 Miss. 495. Since the adoption of the Code a married woman has no power to incumber the corpus of her separate estate by deed of trust, mortgage or otherwise, for the debt of her husband, but only the income thereof. The statute expressly provides that no conveyance or incumbrance for the separate debts of the husband shall be binding on the wife beyond the-amount of her income. Rev. Code, 336, art. 23. This is a wise provision intended to secure to the wife the enjoyment of her separate estate against any possible contingency of loss through the fraud, force or undue influence of her husband. The solution of the third question depends upon the facts of — 707 — the case as they may be developed and established by the evidence. With a view to the more beneficial enjoyment and productiveness of the separate estate of a married woman, the law has provided that all contracts made by the husband and wife, or by either of them, for supplies for the plantation of the wife, or for the employment of an agent to superintend the planting operations, may be enforced, and satisfaction had out of her separate estate. And all contracts made by the wife, or by the husband with her consent, for family supplies or necessaries, wearing apparel of herself and children, or for their education, or for household furniture, or for carriage and horses, or for buildings on her land or premises, and the materials therefor, or for work and labor done for the use, benefit or improvement of her separate estate, shall be binding on her, and satisfaction may be had out of her separate property. Rev, Code, 336, art. 25. And it has been decided that a married woman is liable on a promissory note given by her for a horse purchased by her for the supply and use of her plantation. Robertson v. Ward and wife, 12 S. & M. 490. This adjudication was made under the act of 1846, which made the income only of her separate estate liable to the payment of the debt. And under the act of 1851, this court has decided that the wife is liable out of the corpus of her separate estate to the payment of a note given by herself and husband for money advanced for the purpose of purchasing supplies for her plantation, and which was actually applied to that purpose. Bowman and wife v. Thomas E. Helm. These cases are regarded as coming within the equity of the respective statutes under which the debts were contrated. It results, therefore, from this view of the law, that Mrs. Walker is liable to payment out of her separate estate for the amount of supplies furnished by Carlisle & Humphries for her plantation, and for the amount of the money advanced by them to Walker, or Walker and wife, for the purchase of supplies for her plantation, or the improvement of her separate estate, and which were acually applied to that use and purpose. And for that portion of the debt secured by the mortgage, which was not applied to these purposes, she is liable to payment out of the income only of her separate estate. The record contains no evidence as to what portion of the debt secured by the mortgage was for supplies actually furnished by Carlisle & Humphries for — 708 — the plantation of Mrs. Walker, or which was applied to the purchase of such supplies. Nor is there any proof as to what amount of the money advanced by Carlisle & Humphries was applied by Walker to his own use. The most appropriate remedy of Carlisle & Humphries will be found in a court of equity, in which an account can be taken of what portion of the note secured by the mortgage was for supplies for Mrs. Walker’s plantation, and what part of the money was advanced by them for the purchase of such supplies, and which was actually so applied, and what part of the same was used by Walker for his own purposes. When these facts are ascertained, the court will make a decree in accordance with the principles above laid down, subjecting the separate estate of Mrs. Walker to sale to pay for the supplies for her plantation, and decreeing that the trustee of the estate and Mrs. Walker pay to Carlisle & Humphries the amount of the debt, secured by the mortgage, found due them by William F. Walker, out of the income of her separate estate. It is insisted by some of the counsel of the appellee that the mortgage was void.because the trustee did not join in the mortgage deed. This (was not necessary. In a case free from fraud or undue influence, a married woman can bind her separate property without the trustees, unless their assent be made necessary by the instrument which gave that property. And in the case at bar the charge made upon the separate estate by the wife is totally unrestrained by the deed creating the trust estate, and is valid and binding, and a court of equity is bound to enforce it, so far as to subject the separate estate to the payment for strpplies for carrying on the wife’s plantation, and so far as she was surety for her husband, and had mortgaged her property to pay pay his debt, to subject the rents, issues and profits of-her separate estate to the payment of that debt. With respect to the duty of trustees in relation to real property, it is still held, in conformity to the old law of uses, that pernancy of the profits, execution of estates and defense of the land are the three great properties of the trust. Therefore, a court of chancery will compel trustees, 1. To permit the cestui ■que trust to receive the rents and profits of the land; 2. To execute such conveyances as the cestui que trust shall direct; — 709 — 3. To defend the title of the land in any court of law or equity. Tiff. & Bui. on Trusts and Trustees, 815. A cestui que trust may lawfully dispose of his trust estate, notwithstanding his title is contested by the trustee, for the latter can never disseize the former of the trust estate; but so long as it continues, the possession of the trustee is treated at least in a court of equity as the possession of the cestui que trust. Baker v. Whiting, 3 Sumner, 475. It is insisted that the power of sale contained in a mortgage deprives the mortgagor of his equity of redemption, and therefore cannot rightfully be exercised. The principle seems to be now well established, though after great doubt and discussion, that a clause may legally be inserted in the mortgage deed empowering the mortgagee, upon breach of condition, to make sale of the mortgaged premises, to pay his debt from the proceeds, and account with the mortgagor for the balance. The power of sale is to apply solely to the remedy, and not to impair any right of the mortgagor. The power of sale does not bar the mortgagee’s right to foreclose by. judicial proceedings. The remedy is cumulative merely, and in no respects affects the jurisdiction or proceedings of a court of chancery. 1 Hill, on Mort. 128, 129. And such sale made after the law day or breach of condition, and in pursuance of the terms of the mortgage, vests in the purchaser all the title conveyed by the mortgage, free from the right of redemption. \ There is nothing in the record tending in any way to impeach the validity of the mortgage. There is no evidence of any undue influence or improper conduct or control on the part of the husband to obtain the wife’s assent and signature to the mortgage deed. And the debt in question was not incurred for the husband alone, or for unworthy purposes. It was for money advanced and articles supplied, partly for the family, partly for the use of Mrs. Walker, and partly for the benefit of the trust estate. We can, therefore, perceive no good reason why the mortgage should not be enforced against the separate estate or its income, according to the nature, extent and character of the liability when ascertained by proof. It is objected that the mortgagees had no right to sell the corn advertised, under the power of sale contained in the mortgage deed, for the reason that there was no corn mortgaged. This — 710 — objection is well taken; for it is very clear that the mortgagees can sell under the power only the property covered by the mortgage. For the reasons set forth in this opinion, we think the court below erred in dissolving the injunction. The decree must therefore be reversed and cause remanded.