Taylor v. Cussen

• Decision Date: 15 June 1893
• Citation: 90 Va. 40,17 S.E. 721
• Parties: TAYLOR et al. v. CUSSEN.
• Court: Virginia Supreme Court

17 S.E. 721

90 Va. 40

TAYLOR et al.

v.CUSSEN.

Supreme Court of Appeals of Virginia.

June 15, 1893.

Married Women —Separate Estate —Deed of Trust—Estoppel.

1. A married woman having an equitable separate estate in land can dispose of the cor-pus thereof only with the concurrence of her husband, as prescribed by statute, unless the instrument creating the estate otherwise provides; and a deed of trust executed on such a separate estate by a married woman and her trustee, without her husband joining therein, is void.

2. A deed of trust executed on the separate estate of a married woman, which is void as an alienation of the corpus of the estate, is not an incumbrance on the rents and profits, where it does not appear that the loan was for her benefit, and her sole object in executing a deed was to create a specific lien on the estate for the payment of the debt.

3. The fact that a husband negotiated a loan with which to improve his wife's separate estate will not estop him from asserting the invalidity of a deed of trust, executed by her to secure the loan, on the ground that he did not join therein, where he made no misrepresentation as to the state of the title, and it does not appear that he was guilty of deception or wrongdoing of any sort.

Appeal from chancery court of Richmond; J. C. Lamb, Chancellor.

Bill by William J. Cussen against William G. Taylor and others to restrain defendants from enforcing a deed of trust. From a decree in complainant's favor, defendants appeal. Affirmed.

F. M. Corner and B. T. Barrett, for appellants.

Meredith & Cooke and Jackson Guy, for appellee.

LEWIS, P. This is an appeal from the chancery court of the city of Richmond. This case is substantially as follows: By deed bearing date September 7, 1809, one Walthall conveyed, in consideration of $225, to John C. Gibson, trustee for Ophelia V. Cussen, three unimproved lots situate in that part of Richmond known as "Fulton." This deed was recorded in 1871. On the 27th of June, 1873, W. G. Cussen, the husband of the said Ophelia, negotiated a loan with the Dollar Savings Bank of $4,800, for which sundry notes were executed by Gibson, trustee, payable to his own order, and indorsed by him; and to secure these notes a deed of trust was on the same day executed by Gibson and Mrs. Cussen, conveying the said lots to Bossieux and Smith, trustees. In February, 1875, several of the notes being due and unpaid, the trustees in the deed of trust advertised the lots for sale, whereupon Mrs. Cussen, suing by her next friend, David Carr, filed her bill alleging that the deed of trust was void, and praying for an injunction to prohibit the sale, and an injunction was awarded. Afterwards the trustees of the bank, who were made defendants, answered the bill, averring that the lots in question were in reality the property of the said W. J. Cussen, and that the conveyance was taken in the name of Gibson, trustee, as a cloak to prevent it from the claims of his (Cussen's) creditors. It was also averred that the money loaned by the bank wasused In improving the property. On the 13th day of November, 1884, the lots were conveyed by Gibson and Mrs. Cussen (W. J. Cussen uniting in the deed) to one Schwartz, who on the same day conveyed them to Cussen; the consideration expressed in both deeds being five dollars. Some time afterwards, Mrs. Cussen died, whereupon the suit was renewed in the name of W. J. Cussen as sole plaintiff. Under a subsequent decree the cause was referred to a commissioner for certain inquiries to be made, who reported (1) that Mrs. Cussen took under the deed of September 7, 1869, an equitable estate; (2) that the deed of trust of the 23d of June, 1873, was ultra vires and void; but (3) that W. J. Cussen was estopped to deny its validity. This report was confirmed, except in the latter particular, and a perpetual injunction granted, by the decree complained of.

We are of the opinion that there is no error in the decree. Assuming, for the purpose of the present case, that Mrs. Cussen took under the deed of 7th September, 18G9, a separate equitable estate, as contended for by the appellant, it is clear that the deed of trust is void. The doctrine is well established In Virginia that a married woman having an equitable separate estate in land can dispose of the corpus thereof only by will, or by deed with the concurrence of her husband, (i. e. in the mode prescribed by the statute for the alienation of real estate by a married woman,) unless the instrument creating the estate otherwise provides. This has been so often decided as to be no longer an open question in this court. McChesney v. Brown, 25 Grat. 393; Christian v. Keen, 80 Va. 369, and cases cited. In the present case the instrument creating the estate neither prescribed a mode of alienation nor imposed any restriction upon the power of alienation; so that the deed of trust, extended, as it was, by Mrs. Cussen, without the concurrence of her husband, was without any legal effect whatever, so Tar as she was concerned, and, so far as the trustee, who united in it, is concerned, it was ultra vires and void. Green v. Claiborne, 83 Va. 386, 5 S. E. Rep. 376. It is contended, however, that the deed, if void as an alienation of the corpus of the trust estate, is to be considered as an incumbrance upon the rents and...