Lammons v. Allen

• Decision Date: 16 December 1889
• Citation: 6 So. 915,88 Ala. 417
• Parties: LAMMONS ET AL. v. ALLEN.
• Court: Alabama Supreme Court

6 So. 915

88 Ala. 417

LAMMONS ET AL. v. ALLEN.

Supreme Court of Alabama

December 16, 1889

Appeal from chancery court, Calhoun county; S. K. MCSPADDEN Chancellor.

Bill in equity of E. D. Allen against S. J. Lammons and A. A Lammons, her husband, to foreclose a mortgage. Defendants appeal from a decree for foreclosure.

Brothers, Willett & Willett, for appellants.

E H. Nanna, for appellee.

CLOPTON J.

It appears from the writings, which are made exhibits to the bill and answer, that Mrs. Lammons purchased, December 17, 1883, the land in controversy from the Southern Development Land & Immigration Company, at the price of $150, one-third of which was paid in cash, and for the other two-thirds she gave two notes, of $50 each, payable, respectively, on the 17th day of June and December, 1884. The company gave her a bond conditioned to make title on the payment of the notes, and, on their payment, executed a conveyance, in her name, December 8, 1884. On March 21, 1884, Mrs. Lammons and A. A. Lammons, her husband, executed to appellee the mortgage, which he seeks by the bill to foreclose, to secure a note for $400, made by both of them, and payable June 1, 1885. In defense of the bill, Mrs. Lammons sets up and that the land is her statutory separate estate, which she is incapable of mortgaging.

The transactions occurred before the passage of the act of February 28, 1887, defining the rights and liabilities of husband and wife, and are therefore governed by the principles of the common law and the statutes regulating the separate estates of married women then in force.

It may be conceded that the chancellor erred in decreeing a trust resulted to complainant, and on this basing his right to a foreclosure of the mortgage. Bolman v. Lohman, 74 Ala. 507; Chapman v. Abrahams, 61 Ala. 108. If admitted to be erroneous, it would not necessarily avail a reversal; for, independent of this, there are considerations and equitable principles on which the correctness of the final decree may well be founded.

It is true, a married woman may purchase land, during coverture with the assent of her husband, or, if without his assent, subject to his disaffirmance, seasonably expressed, and that a purchase so made, and a conveyance in her name, create in her a separate estate, though the purchase money may be paid with the means of her husband. When the husband pays for land during coverture, and the conveyance...