Smythe v. Fitzsimmons

• Decision Date: 13 December 1892
• Citation: 97 Ala. 451,12 So. 48
• Parties: SMYTHE ET AL. v. FITZSIMMONS ET AL.
• Court: Alabama Supreme Court

12 So. 48

97 Ala. 451

SMYTHE ET AL. v. FITZSIMMONS ET AL.

Supreme Court of Alabama

December 13, 1892

Appeal from chancery court, Montgomery county; John A. Foster Judge.

Proceeding in chancery by O.P. Fitzsimmons and others against Frederick Smythe and others to vacate a deed and a mortgage under it. From a decree sustaining a demurrer and dismissing a bill of review filed to reverse a decree for plaintiffs, defendants appeal. Reversed.

W. S Thorington and Lester C. Smith, for appellants.

Tompkins & Troy, for appellees.

STONE C.J.

Mary B Fitzsimmons, during her lifetime, was the beneficial owner of a large body of land lying in Russell county, of this state. She was a married woman, and at the time of the occurrences after mentioned O. P. Fitzsimmons, Sr., her husband, was her trustee. The title to the lands was vested in her husband trustee, for her benefit. Its provisions are: "To have and to hold, [to the trustee and his successors,] in trust for the sole and separate use, benefit, and behoof of [Mary B. Fitzsimmons] and her heirs, free of all claims, liability, or control of [her husband;] the said Mary B. F. to have the right and privilege of disposing of the same by last will and testament as she shall deem proper, by and with the advice and consent of the [trustee:] provided, always and it is hereby declared to be a part of my intent and purpose by the execution of these presents, that [Mary B. F.] and the said [trustee] shall and may, by their joint deed of conveyance, sell, transfer, and dispose of any portion of the trust property hereby conveyed, and invest the proceeds thereof in any other property, to be held by the said trustee upon the same trust, and for the same intent and purpose, and the said property which shall have been sold by them; and that [Mary B. F.] and the said [trustee] shall and may, by their joint deed of conveyance, dispose or transfer and convey any portion of the trust property hereby conveyed, in exchange for any other property being real estate, stocks, funds, or securities of any sort or description whatever, according as in their judgment shall be most advisable; the said property so received in exchange to be held by the said trustee upon the same trust, and for the same intent and purpose, as the property which shall have been disposed of in exchange for the same; it being hereby expressly understood, declared, and published that the purchaser of the said trust property, or the person receiving the same in exchange for the other property, shall in no case, instance, or manner be held responsible to look after the application of the purchase money or property so received in exchange by the said trustee." The present suit is what is known as a "bill of review." The pleadings and documentary facts in the original case, which the present suit seeks to have reviewed, show the following transaction: On May 8, 1883, O. P. Fitzsimmons, Sr., the trustee, and his wife, Mary B. Fitzsimmons, the beneficiary, executed a conveyance of all of said lands covered by the trust deed, to E. Motte Fitzsimmons, their son. The conveyance is an ordinary deed of bargain and sale on a recited consideration of $20,000 paid. This deed was duly executed, acknowledged, and recorded, and on its face it purports to convey the lands to the grantee. On June 16, 1883, E. Motte Fitzsimmons executed a mortgage, by which he conveyed all of said lands to Frederick Smythe, treasurer, to secure the payment of $4,000, due to the latter, the payment to be made at the Corbin Banking Company, city of New York. This mortgage was also duly executed, acknowledged, and recorded. In September, 1885, Mary B. Fitzsimmons filed her original bill against Frederick Smythe and others for the purpose of removing and vacating the said deed to E. Motte Fitzsimmons, and the mortgage from him to Frederick Smythe, as clouds upon her title to said lands. She set forth her title as hereinabove shown, and averred that the conveyance by herself and trustee (her husband) to E. Motte Fitzsimmons, although it recites $20,000 as the consideration, was in fact upon no consideration whatever; that her husband, O. P. Fitzsimmons, procured the deed and mortgage to be executed to enable him to borrow money on that security, which he succeeded in doing; and that there was no other consideration for either conveyance. She averred further that all this was known to, and advised by, the agent of the loan company, before the loan was perfected. There was a demurrer to Mrs. Fitzsimmons' bill, which the chancellor overruled. In April, 1889, the cause having been submitted for final decree, full relief was granted to complainant, and the mortgage ordered to be vacated and canceled. The bill of review was filed in October, 1890, and a demurrer final was sustained to it in October, 1891. From that ruling the present appeal is prosecuted.

Was there merit in the bill of Mrs. Fitzsimmons? In 2 Pom. Eq Jur. (2d Ed.)§ 1104, is this language: "Where the separate estate embraces land, the wife's power of disposition over her life estates therein has never been doubted, and her contracts to sell or to mortgage such life estates have always been specifically enforced against her. *** The general rule is now established that the wife's power of disposition as a feme sole extends to estates in fee in lands as fully as to life estates, or to personal property. *** As an incident of her general power of disposition, unless she is expressly restrained from anticipation, a married woman renders her separate property liable for a breach of trust by her trustees in which she has concurred, and for a breach of trust which she herself commits." This is said by the author to be the English rule. Speaking of the rule established by the current of American decisions, the same author, in section 1105, says: "They regard the wife's jus disponendi as resulting from the fact of an equitable separate estate, over which she is, partially at least, a feme sole, and not as resulting from the permissive provisions of the instrument creating such separate estate." In 2 Story, Eq. Jur. § 1394, it is said: "If the property is expressly given to a married woman, to her, for her sole and separate use,' without saying 'for life,' and if she is further authorized to dispose of the same by will, in such a case the gift will be construed to confer on her the absolute property; and consequently she may dispose of it otherwise than by will, for, the absolute property being given, the power becomes nugatory, and is construed to be nothing more than an anxious expression of the donor that she may have an uncontrolled power of disposing of the property. So, if a limitation be to a married woman for life, for her sole and separate use, with a particular power of appointment of the property, and, in default of any appointment, the property is limited to her personal representatives, she will, or at least may, under such circumstances, be deemed the absolute owner, and, as such, she will have an unlimited power to dispose of the property generally, without any exercise of the power of appointment." These principles, so declared by these standard authors, are amply sustained by the numerous decisions to which they refer. See, also, Hulme v. Tenant, 1 Brown, Ch. 16, 1 Lead. Cas. Eq. 481, and the elaborate note added thereto. Id. top page 741 et seq. It would seem that this question ought to be regarded as forever put to rest in Alabama. In Burrus v. Dawson, 66 Ala. 476, the conveyance was to a trustee for the benefit of a married woman during coverture. It contained the following clauses: "The said lands to be held by the said Hamlin L. Dudley, trustee, as the separate estate of the said Barbara Dawson, [the beneficiary,] with power to sell, mortgage, exchange, or otherwise dispose of the same: provided, the said Barbara shall join with the said Hamlin in any sale, conveyance, exchange, or other disposition of said property, and by such joint action manifest her consent to the disposal of the same in writing. To have and to hold the said bargained premises unto him, the said Hamlin L. Dudley, trustee, his heirs and assigns, together with all and singular the rights, members, and appurtenances thereof, the same in any manner belonging, to his and her proper use, benefit, and behoof, in fee simple." Pending the coverture, Mr. and Mrs. Dawson executed a promissory note and a mortgage on the...