Evans v. Faircloth-Byrd Mercantile Co.

• Decision Date: 10 February 1910
• Citation: 165 Ala. 176,51 So. 785
• Parties: EVANS ET AL. v. FAIRCLOTH-BYRD MERCANTILE CO.
• Court: Alabama Supreme Court

51 So. 785

165 Ala. 176

EVANS ET AL. v. FAIRCLOTH-BYRD MERCANTILE CO.

Supreme Court of Alabama

February 10, 1910

Appeal from Chancery Court, Geneva County; L. D. Gardner Chancellor.

Proceedings to foreclose a mortgage by the Faircloth-Byrd Mercantile Company against R. C.J. Evans and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.

W. O Mulkey, for appellants.

C. D Carmichael, for appellee.

SIMPSON J.

The bill by the appellee seeks to foreclose a mortgage, executed on January 4, 1908, by appellant M. A. Evans and her husband one of the other appellants, and also prays that a mortgage executed by said respondents M. A. and R. C.J. Evans, on November 14, 1907, to the Citizens' Bank of Geneva, another respondent, be declared null and void as to the land conveyed by the mortgage to complainant, on the ground that said M. A. Evans, at the time of the execution of said mortgage, was a married woman, owning said property as a part of her separate estate under the laws of Alabama, and the same was given as security for her husband's debt. This appeal is from the decree overruling the demurrer to the bill.

The contention of the appellant is that no one can raise the point of the invalidity of a mortgage by a married woman, on the ground stated, except herself. Our statute does not merely confer on the wife the right to plead her coverture to such conveyances, but provides that "the wife shall not, directly, or indirectly, become the surety for the husband." Code 1907, § 4497. If she is absolutely prohibited from making such an instrument, it necessarily follows that any attempt to do so is not merely voidable, but void. If so, it is difficult to see how her failure to take any steps to set aside the instrument, or even her ratification of it, could rise above the instrument itself and impart validity to it. This court has frequently declared all such attempts to be void. They were so declared, under the former statute, in the case of Lansden v. Bone, 90 Ala. 446, 8 So. 65, in favor of the heirs of the wife; the court saying: "To require them to show in their bill that the debt had been paid, or to aver a willingness to pay it, would be, in effect, to give validity to a mortgage of the wife's land, executed to secure the husband's debt, in the teeth of the very numerous decisions of this court * * * to the effect that such instruments are absolutely void as conveyances of the wife's land." In a later case, when it was first before this court, it was declared that the legal title passed by such mortgage ( Richardson v. Stephens, 114 Ala. 238, 21 So. 949), leaving the wife only an equity; but on the second appeal that expression was corrected, and the court declared distinctly (calling attention to the wording of the former and present statutes) that the mortgage was absolutely void, and that "the mortgage, being void, conferred no rights upon the mortgagee." Richardson v. Stephens, 122 Ala. 306, 25 So. 39.

The case of Scott v. Tual, 115 Ala. 529, 22 So. 447, is based upon the principles of the commercial law with regard to negotiable instruments, and is not applicable to the case now under consideration. Besides the fact that the case of Johnson v. Jouchert, 124 Ind.

105, 24 N.E. 580, 8 L. R. A. 795, is based on a statute declaring the contract "void as to her," its arguments are not sufficient to induce this court to adopt its conclusions, contrary to our own policy, as shown in our statutes and decisions.

Moreover the execution of the mortgage to the complainant's assignor was a repudiation of the previous mortgage. It conveys the property with covenants of warranty as to the title and against incumbrances. The complainant, through its assignor being brought into privity with said M. A. Evans, by receiving such a deed from her, is entitled...