Armstrong v. Conner

• Court: Alabama Supreme Court
• Writing for the Court: STONE, C.J.
• Citation: Armstrong v. Conner, 86 Ala. 350, 5 So. 451 (Ala. 1889)
• Decision Date: 08 February 1889
• Parties: ARMSTRONG v. CONNER.

5 So. 451

86 Ala. 350

ARMSTRONG v. CONNER.

Supreme Court of Alabama

February 8, 1889

Appeal from chancery court, Pike county; JOHN A. FOSTER, Chancellor.

Bill by Clemmie Armstrong to have a deed made by her and her husband to Martin Conner declared null and void, and to have the same removed as a cloud upon the title to her statutory separate estate. The facts of the case, and as shown by the record are identically the same as those recited in the opinion of the court in Conner v. Armstrong ante, 449. On the final hearing of the pleadings and proof, the chancellor dismissed the bill for want of equity and complainant appeals.

Gardner & Wiley, for appellant.

Parks & Son and P. O. Harper, for appellee.

STONE C.J.

If the bill in this case had shown that complainant had a legal title to the land on which she could have sued at law, then being out of possession, she could obtain no relief in chancery on a bill which had no other equitable aim than a removal of a cloud from her title. Peeples v. Burns, 77 Ala. 290. And a mortgage executed by husband and wife, by which they attempt to convey her statutory separate estate, if executed prior to our late statute on the subject, (February 28, 1887,) is absolutely void, and opposes no bar to the assertion of her right in a court of law. 3 Brick. Dig. 553, § 153 et seq. The question, however, is very different when the husband and wife execute a deed of conveyance, absolute in form, and upon a recited valuable consideration. The statute conferred on them the right to sell and convey, and if, on its face, the deed purported to conform to its requirements, the legal title would thereby be divested out of the wife. Code 1876, § 2707; 3 Brick. Dig. 552, § 140 et seq. In such case, the wife,...