Pollard v. American Freehold Land Mortg. Co.

Decision Date17 May 1894
Citation103 Ala. 289,16 So. 801
PartiesPOLLARD ET UX. v. AMERICAN FREEHOLD LAND MORTGAGE CO. [1]
CourtAlabama Supreme Court

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Bill by the American Freehold Land Mortgage Company against Charles T. Pollard and others to compel defendants to affirm or disaffirm a sale of mortgaged premises, whereat plaintiff, a mortgagor, became a purchaser. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

In January, 1886, Charles T. Pollard and Rebecca M. Pollard executed a mortgage to the American Freehold Land Mortgage Company, to secure a loan of $21,000, which was evidenced by their promissory notes, and notes for the payment of interest. At the time of executing this mortgage, they also excuted another mortgage to B. K. Collier, which referred to the mortgage to the American Freehold Land Mortgage Company and declared that it was subordinate to the mortgage to said company. This second mortgage was assigned by B. K. Collier to F. W. Dunton. Charles T. Pollard made default in the payment of the interest note falling due December, 1888, and thereupon the mortgage company, in pursuance of the provisions contained in the mortgage, entered into possession of the property conveyed in said mortgage, and subsequently sold the property under a provision of sale contained in the said mortgage. Notwithstanding there was no stipulation or authority given in the mortgage for the mortgagee to become the purchaser at its foreclosure sale, the American Freehold Land Mortgage Company became the purchaser, and thereupon filed the present bill to compel the mortgagors and the junior mortgagee to elect to affirm or disaffirm said sale and, in the event of a disaffirmance, to have the said mortgage foreclosed by order of the court. The bill, as amended, averred that, at the time of the execution of the mortgage, Rebecca M. Pollard was a married woman, the wife of Charles T. Pollard, and that a part of the property conveyed in the mortgage was her statutory separate estate; that prior to the execution of said mortgage, she had filed her petition in the city court of Montgomery, sitting in equity to have her disabilities of coverture removed, and that in this petition her husband, Charles T. Pollard, joined, giving his consent to the rendition of the decree; that, in pursuance of said petition, there was a decree rendered removing the disabilities of coverture. It was also averred that, after the execution of this mortgage, the mortgagors sold the equity of redemption to A. P. De Bardelaben, and, upon his failure to pay the purchase money therefor, they foreclosed the mortgage executed by them, and Mrs. Pollard became the purchaser; and that the said De Bardelaben was in possession of the property at the time the complainant took possession thereof. To the bill, as amended, Charles T. Pollard and Rebecca M. Pollard filed their answers, setting forth that the proceedings to remove the disabilities of coverture of Mrs. Rebecca M. Pollard were null and void, in that the petition in which said decree was rendered was not filed in court, as the statute requires, before the decree was rendered by the chancellor; and, further, that, while the petition contained the jurisdictional averment that Mrs. Pollard was seised and possessed of a separate estate, neither the evidence in the cause showed nor did the decree ascertain said fact. These defendants also demurred to the bill on the same grounds.

John G. Winter, for appellants.

Caldwell Bradshaw and Webb & Tillman, for appellee.

BRICKELL C.J.

The primary question raised upon the record is whether the decree of the judge of the city court of Montgomery, sitting as a chancellor, rendered on the 20th day of January, 1886, relieving the appellant Rebecca M. Pollard from the disabilities of coverture, is valid, empowering her to execute the mortgage under which the appellee deduces title to the lands in controversy. The city court had and has, within the county of Montgomery, concurrent jurisdiction with the court of chancery; and to the judge of the court there is an express grant of "all the powers exercised now, or hereafter to be exercised by the chancellor of this state." Pamph. Acts 1880-81, p. 267. The validity of the decree must therefore be subjected to the same tests to which it would have been subjected if it had been rendered by a chancellor. A statute of force at the time of the rendition of the decree authorized the several chancellors, sitting in term time or in vacation, "to relieve married women of the disabilities of coverture as to their statutory and other separate estates so far as to invest them with the right to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as feme sole." The exercise of the authority could be invoked only by a married woman; and the mode of procedure prescribed was a petition filed in the chancery district of her residence praying that for the purposes expressed in the statute she be decreed a feme sole. Notice of the petition was given to the husband only; and if, by writing signed by him and filed in the cause, he assented to the granting of the prayer of the petition, the decree followed as matter of course, if it appeared to the chancellor that the interests of the wife required it; if he did not assent, proof must have been taken as in other chancery causes. The uniform construction of the statute, while of force, was that it was a delegation to the chancellor, not to the court of chancery, of a power inherent in the general assembly, and which, without express legislative grant, no judicial officer or tribunal could rightfully exercise. Being strictly a statutory power, without the ordinary, usual sphere of judicial power, in its exercise the chancellor was bounded and limited by the terms of the statute. The indispensable prerequisite to the exercise of the power was the petition, complaint, or application of a married woman, showing her residence in the chancery district, alleging that she had a statutory or other separate estate, and praying the relief the chancellor had authority to grant. Ashford v. Watkins, 70 Ala. 156; Cohen v. Wollner, 72 Ala. 233; Doe v. Burke, 74 Ala. 530; Falk v. Hecht, 75 Ala. 293; King v. Bolling. Id. 306; Meyer v. Sulzbacher, 76 Ala. 120; Hatcher v. Diggs, Id. 189.

A petition was filed by Mrs. Pollard, the sufficiency of which, in every respect, to call into exercise the power of jurisdiction of the judge of the city court, has not been and cannot be questioned. It contains the averment of every material fact, rendering it the duty of the judge of the city court to enter upon the inquiry whether the decree the statute authorized him to render should or should not be rendered. It was accompanied by the assent, in writing, of the husband to the grant of the prayer of the petition. The decree the validity of which is now assailed was rendered, and it grants, in the terms of the statute, the precise relief the judge had authority to grant.

It is insisted by the counsel for the appellants that the decree is void, because it does not affirm that Mrs. Pollard had a statutory or other separate estate, or that there was evidence produced showing the existence of such estate. It is true, the power or jurisdiction could not be properly exercised unless upon the record it appeared that she had such estate; for it was not within the legislative intent that any and every married woman should be relieved from the disabilities of coverture, but only those who had an estate in reference to which the capacity expressed in the statute could be employed. Cohen v. Wollner, supra; Doe v. Burke, supra. It was the petition or complaint from which it must have appeared that such estate existed, and, if that did not allege the fact, the proceedings would have been coram non judice. Jurisdiction was dependent wholly and exclusively upon the allegations of the petition; and, if it was wanting in material allegations, the jurisdiction could not be created by proof or by affirmation or recitals in the decree. The petition calling into exercise the power or jurisdiction of the city court, while, perhaps, the decree would have been more formal if it had affirmed the fact that Mrs. Pollard had a statutory or other separate estate, the omission of the affirmation does not affect the regularity or validity of the decree. Wilson v. Judge County Court, 18 Ala. 757. If there had been error or irregularity in this respect it would have been error or irregularity intervening after jurisdiction had attached; and it is a settled axiom of the law, jurisdiction having attached, applicable to all judicial proceedings, and to all courts, whether inferior or superior, or of general or of limited jurisdiction, that, however irregular or manifestly erroneous the final order, judgment, or decree rendered may be, it is not a nullity, and cannot be collaterally impeached. It is merely irregular or erroneous,-it is not void. 1 Freem. Judgm. § 135.

It is also contended that, as the decree does not affirm that Mrs Pollard had a statutory or other separate estate, it is essential that there should appear of record evidence of the fact. If there was in the contention any force, the answer could well be made that there does appear of record evidence of the fact,-the evidence...

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