Sims v. Gunter

• Decision Date: 14 February 1918
• Docket Number: 4 Div. 772
• Citation: 78 So. 62,201 Ala. 286
• Parties: SIMS v. GUNTER.
• Court: Alabama Supreme Court

78 So. 62

201 Ala. 286

SIMS v. GUNTER.

4 Div. 772

Supreme Court of Alabama

February 14, 1918

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Suit in equity by C.T. Sims against D.G. Gunter. From the decree dismissing the bill Sims appeals. Affirmed.

C.D Carmichael, of Geneva, for appellant.

C.W Simmons, of Enterprise, for appellee.

MAYFIELD J.

The question involved on this appeal is the effect to be given to a conveyance of the homestead of the husband, where the wife was a minor at the time of the execution of the conveyance and where she voluntarily signed and assented in the mode and manner provided by the Constitution and statutes of this state as to the alienation of the homestead of a married man.

There is some insistence on the part of appellee that the form of the certificate of separate acknowledgment of the wife is so irregular and defective as not to be a substantial compliance with the Code form for such separate acknowledgment, and that the conveyance is void because of such defective certificate.

While there are irregularities as to the initials of the husband and of the wife, and as to those of another grantor in the conveyance, we hold that they are not such as to render the conveyance void as for want of certificate of separate acknowledgment as provided by section 4161 of the Code. Certificates of acknowledgment are liberally construed; and a substantial compliance with the Code form is all that is required, and that, we hold, appears from an inspection of the conveyance and certificate here. Sharpe v. Orme, 61 Ala. 263; Scott v. Simons, 70 Ala. 352; Cox v. Holcomb, 87 Ala. 589, 6 So. 309, 13 Am.St.Rep. 79. So the real question is as first stated, and this we will discuss and decide.

It is singular that this exact question has not heretofore been decided by this court, nor by any other court so far as we are informed.

We refer, of course, to the courts of states having constitutional or statutory provisions similar to ours. The constitutional and the statutory provisions of this state on the subject are similar, in that the wife is not required to join in the conveyance with the husband, and is not required to be a party to the conveyance in the sense of a grantor; but it is required only by the Constitution that the conveyance, to be valid, shall have "the voluntary signature and assent of the wife." The statute (section 4161 of the Code) follows the above language of the Constitution, and then adds:

"Which must be shown by her examination, separate and apart from him, before an officer authorized by law to take acknowledgments of deeds, and the certificate of such officer upon, or attached to such mortgage, deed, or other conveyance, which certificate must be substantially in the following form," etc.

Then follows a form for the certificate of acknowledgment.

The record shows that these constitutional and statutory provisions were substantially complied with. The record also shows that the wife was a minor, 16 years of age, when she assented to and signed and acknowledged the conveyance. Did this render the conveyance of the homestead of the husband absolutely void, or voidable merely, or was it valid? What effect did the wife's infancy have upon the conveyance? If the conveyance amounted to a contract on the part of the wife, then it was voidable and not void, and could be made valid by a ratification on her part. There is, so far as we know, no inhibition against a wife who is a minor assenting to the conveyance of the homestead by the husband. She at best is by the Constitution and the statutes given a mere veto power against the alienation, in that her assent and signature to the alienation is required, and required to be shown by a certificate of separate acknowledgment. She is not a party to the conveyance or alienation, in the sense that she is bound by the covenants or warranties; and the conveyance passes no right, interest, or title which she has, other than the marital rights given her by the law, such as the dower and the homestead rights.

We have another statute (Code, §§ 3818, 3819) which provides for the effect to be given to conveyances of the homestead of the husband, or to the wife's joining with her husband in a conveyance which amounts to a relinquishment of dower only. This statute fixes the age of the wife, who is a minor, at which she may or does relinquish her dower by joining with him in a conveyance of his land, or by a separate instrument executed by her alone; but such a relinquishment does not imply assent to the alienation of the homestead farther than concerns her dower.

A contract of an infant, whether executed or executory, as a rule is voidable merely. There are two exceptions, one as to contracts for necessaries, which are valid as to the just value thereof, and an appointment of an attorney or agent which is void. American Co. v. Dykes, 111 Ala. 187, 18 So. 292, 56 Am.St.Rep. 38; Flexner v. Dickerson, 72 Ala. 318; Philpot v. Bingham, 55 Ala. 435.

On arriving at maturity an infant may repudiate his contract or he may ratify and confirm it without any new consideration. Id.; American Co. v. Wright, 101 Ala. 658, 14 So. 399; Sharp v. Robertson, 76 Ala. 343. For a full discussion of the subject of the contracts of infants, see Craig v. Van Bebber, 100 Mo. 584, 13 S.W. 906, 18 Am.St.Rep. 569, which contains a note of 200 pages.

"While infants should be protected from the consequences of their inexperience and immaturity of judgment, it should not be forgotten that their protection does not require the situation of persons who have dealt with them in good faith to be entirely overlooked.

"Infants, the law says, are destitute of sufficient understanding to enter into contracts generally which shall be binding upon them. 'The law, therefore,' in the language of Chief Justice Parsons in Baker v. Lovett, 6 Mass. 78, 80 'protects their weakness and imbecility so far as to allow them to avoid all their contracts by which they may be injured. But in favor of infants, they are bound by all reasonable contracts for their maintenance and education, and also by all acts which they are obliged by law to do.' " Craig v. Van Bebber, 100 Mo. 584, 13 S.W. 906, 18 Am.St.Rep. 573, note.

It has been held, however, that statutes relieving married women of the disabilities of coverture do not also relieve them of the disabilities of infancy, unless the particular enactment provides as does our statute, section 3818 of the Code. We have many decisions to this effect, dealing with the conveyance of the wife's statutory separate estate, or with relinquishment of dower, the holding being that, unless the statute so provided, relief from the disabilities of coverture did not carry relief from those of infancy.

A deed executed by an infant feme covert pursuant to the statutory requirements stands on precisely the same footing as a deed executed by an infant feme sole. In other words the deed is not binding, nor is it void, but it is voidable. Greenwood v. Coleman, 34 Ala. 150; Schaffer v. Lavretta, 57 Ala. 14.

"It is inconceivable," says the court in Greenwood v. Coleman, supra, "that it was designed to confer upon her, when under coverture, an authority to contract which did not pertain to her if sole and unmarried. and to dispense with the disability of infancy."

In Sandford v. McLean, 3 Paige (N.Y.) 117, 121, 23 Am.Dec. 773, 775, Chancellor Walworth uses the following language:

"The statute which makes valid the deed of a feme covert when executed with her husband, and acknowledged by her on a

private examination, was never intended to sanction or validate a conveyance by an infant wife. There is a plain and obvious distinction between the disability of coverture and that of infancy. The first arises from a supposed want of will on account of the legal power and coercion which the husband may exercise over the volition of the wife. This disability is removed by the private examination of the wife in the absence of her husband, by which it is legally ascertained that such power and coercion has not been exercised in that particular case. But the disability of infancy arises from the supposed want of capacity and judgment in the infant to contract understandingly."

It therefore follows that the assent and acknowledgment of the infant wife in this case is in no better nor worse condition than if she had been a feme sole at the time. The mere fact that the statute provides that the wife may sign, consent to, and acknowledge the deed of the husband does not make her act in so doing void, or valid, if she be an infant; hence these acts are voidable only, and are valid and binding until avoided by the infant at a time and in a mode authorized by law.

It is also true that an act or a deed of an infant which the law would compel him to do or make is just as valid as if he were of full age. An infant may be an agent or a trustee for another, and may bind such other person, though he cannot bind himself. He cannot appoint an agent or attorney for himself; such an act would be absolutely void, not merely voidable. Co. Litt. 172d, gives the rule of an infant's general liability as follows:

"An infant may bind himself to pay for his necessary meat, drinke, apparel, necessary physicke, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterward. but if he bind himself in an obligation or other writing with a penalty, for the payment of any of these, that obligation shall not bind him."

He adds:

"And generally whatsoever an infant is bound to do by law, the same shall bind him, albeit he doth it without suit at law."

Lord Mansfield quotes and applies this...