Wilder v. Wilder

• Citation: 89 Ala. 414,7 So. 767
• Parties: WILDER v. WILDER ET AL.
• Decision Date: 06 May 1890
• Court: Alabama Supreme Court

7 So. 767

89 Ala. 414

WILDER v. WILDER ET AL.

Supreme Court of Alabama

May 6, 1890

Appeal from chancery court, Lowndes county; JOHN A. FOSTER Chancellor.

Bill to have a vendor's lien enforced in favor of the complainant, and declared superior to the mortgage given by the defendant Wilder to the American Freehold Land Mortgage Company of London. The facts are sufficiently set forth in the opinion. Upon final hearing the chancellor refused the relief prayed, and decreed her lien to be subordinate to the mortgage. The complainant appeals.

Clements & Brewer, for appellant.

Webb & Tillman, for respondent.

SOMERVILLE J.

The controlling question in this case involves the doctrine of equitable estoppel, or estoppel in pais, in its application to a married woman, where she appears as a complainant in a court of equity, seeking affirmatively to enforce a right inconsistent with her previous conduct, upon which one of the defendants in the suit has relied and acted. The subject is one in regard to which there is no little conflict of authority, and the magnitude of its importance grows with the changed policy of modern legislation, removing to a great extent the iron-clad disabilities of married women imposed by the rules of the common law.

The specific question here involved is whether a married woman is estopped to enforce a vendor's lien on land sold and conveyed by joint deed of herself and husband, in due form prior to the Code of 1886, when she and her husband were active in making the sale, and by their declarations and conduct induced a third person to advance to her vendee a part of the purchase money, with the understanding that her lien should be waived in favor of such person. In other words, if she agrees to have secured the unpaid installment of her purchase money on the land by a second mortgage, subordinate to a first mortgage of a third person, who, on the faith of such superior security, advances the money to her vendee to enable him to pay the first installment to her, can she afterwards repudiate this waiver of her vendor's lien, and enforce it as a prior lien over this other incumbrance, the superiority of which she had admitted, and on the faith of which admission she procured the money? We may add that the transaction is conceded to be governed by the law as it existed under the Code of 1876. This court has uniformly held that the doctrine of estoppel in pais, by conduct or admissions, cannot, when unaccompanied by fraud, be invoked against married women, so as to preclude them from denying the validity of conveyances of their statutory separate estates which do not conform to the requirements of the statute governing the mode of its alienation. This prescribed mode, under the Code of 1876, was by the joint deed of husband and wife, attested by two witnesses, or acknowledged in due form. Code 1876, §§ 2707, 2708. The reason upon which these decisions rest is that the statute prescribes and restricts the mode of alienation by married women of their separate estates; and to allow title to be conferred by equitable estoppel would introduce a new mode of alienation, different from that thus prescribed, and would result in sanctioning indirectly the conveyance by femes covert of their property, when they were prohibited by statute from doing directly the same act in the mode attempted. Canty v. Sanderford, 37 Ala. 91; Alexander v. Saulsbury, Id. 375; Drake v. Glover, 30 Ala. 390; Harden v. Darwin, 77 Ala. 472; Scott v. Battle, 85 N.C. 184. So it has been held in a former decision of this court that, where a husband and wife conveyed lands, with covenant of warranty, to which they had no title, the wife would not be estopped from setting up against the grantee a title to such land afterwards acquired by her. Gonzales v. Hukil, 49 Ala. 260. The act of warranty, being purely contractual, could not operate by way of estoppel, because a married woman then labored under a legal disability to make such a covenant. But there are decisions of other courts opposed to this view. Nash v. Spofford, 10 Metc. 192.

In the case of Drake v. Glover, supra, where the property of the wife was held not to be governed as to its mode of transfer by the statute, because it was not her statutory separate estate, and might, therefore, be conveyed otherwise than by the joint deed of the husband and wife, it was held that the fraudulent silence of the wife when her personal property was sold in her presence by her husband would estop her from afterwards repudiating the sale. But her mere silence, unaccompanied by fraud, would have no such effect.

In Strong v. Waddell, 56 Ala. 471, a married woman who had purchased land, and executed, jointly with her husband, a mortgage as security for the payment of the purchase money, was held to be estopped from denying the title of her vendor, or to interpose her coverture in bar of the foreclosure of the mortgage. The practical effect of such a transaction is that the vendee takes the property burdened with the mortgage, being an estate on condition, to become absolute only on the payment of the purchase money. Marks v. Cowles, 53 Ala. 499. The estoppel is against claiming the estate, and repudiating the incumbrance by which it is burdened.

In McCaa v. Woolf, 42 Ala. 389, the doctrine of equitable estoppel was applied to a married woman so as to preclude her from asserting title to certain personal property which the husband, under the rules of the common law, had reduced to possession and suffered to be sold, and which she, after his death, claimed by right of survivorship.

Mr. Bigelow, in his work on Estoppel, (page 490), asserts that the weight of reason and authority confines the doctrine, when applied to married women, to cases of "pure tort," and excludes from its operation all cases where the "action sounds in contract."

Mr Pomeroy, after calling attention to the conflict of authority on this subject, observes: "The tendency of modern authority, however, is strongly towards the enforcement of the estoppel against married women as against persons sui juris, with little or no limitation on account of their disability. This is plainly so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single. Even independently of this legislation, there is a decided preponderance of authority sustaining the estoppel against her, either when she is attempting to enforce an alleged right or maintain a defense." And he adds: "There are, however, decisions which hold, in effect, that, since a married woman cannot be directly bound by her contracts or conveyances, even when accompanied with fraud, so she cannot be indirectly bound through means of an estoppel; and the operation of the estoppel against her must be confined to cases where she is attempting affirmatively to enforce a right...