Richardson v. Stephens , 122 Ala. 301 ( 1898 )

SHARPE, J.

— A branch of this litigation was before this court in an action of ejectment brought by this appellant foe possession of the land included in this mortgage. — Richardson v. Stephens, 114 Ala. 238. In that case the character of the transaction was considered under the proof there appearing, and it Avas held that the debt secured by the mortgage of Mrs. Stephens was that of her husband. The proof in the present case does not present the matter in any different 'aspect. It sIioavs without conflict that John W. Stephens alone applied for and obtained the loan upon the representation that the land offered as security as Avell as the other property described in his application belonged to him alone. The money was paid to and used by him partly in paying his individual debt and for tAVO mules used for, and other expenses incurred in, cultivating a crop raised by him on appellee’s land, and partly in clearing and improving that land.

The purpose for which the money was borrowed is not otherwise disclosed nor does it appear that appellee was informed of such purpose prior to the loan. The joining of appellee in the execution of the mortgage and notes and of the draft for the collection of the money are but circumstances to be considered in determining her relation to the transaction, but are not conclusive to fix upon her the character either of a principal or surety, and in view of the whole proof it sufficiently appears that the debt which was secured by the mortgage upon her property was that of her husband alone. By the uniform course of our decisions such a mortgage is void, and it was so declared in Richardson v. Stephens, supra; but in a part of the opinion in that case, not necessary to the decision, it is stated in effect that the mortgage operated to divest the title out of Mrs. Stephens and to vest it in the mortgagee so that her remedy to avoid it was properly in a court of equity. This statement seems to need correction. Such would have been the effect of the mortgage under the former statute providing simply that the separate estate of a married woman should not be subject to the debts of her husband. Under that statute the doctrine was as stated in Williams, Birnie & Co. et al. v. Bass, 57 Ala. 487, that “a married woman is incapable of consenting to the appropriation of her statutory separate estate to the payment of her husband's debts, and any instrument executed by her to that end will on her application be declared void.” Until declared void by a court of equity, however, such a mortgage being only voidable at the election of the wife carried the legal title to the grantee leaving in her only an equity. It was upon such status of the parties that the defense of a bona fide purchaser for value might, as intimated in the case last mentioned, be shown to defeat the equity of the wife; but the statute of force since the 28th day of February, 1887, section 2529 of the present Code, declares in positive and prohibitive language that the wife shall not directly or indirectly become the surety for the husband. Its effect upon such mortgages as declared by the decisions involving its construction was to make them void. The annulment was effected by the statute itself without the aid of any court, and the invalidity can be shown at law as well as in equity even in defense of the action of ejectment based upon such mortgage.- — Elston v. Comer, 108 Ala. 76; McNeil et al. v. Davis & Son, 105 Ala. 657; Hawkins v. Ross, 100 Ala. 459. The mortgage being void conferred no rights upon the mortgagee or upon the appellant as a purchaser thereunder. — 28 Am. & Eng. Encyc. Law, 474; Logan & Noble v. Sankey, 55 Ia. 52. There is a total lack of proof that appellant has paid anything on his purchase, and the burden is on him to show payment, and his failure to do so would be fatal to his claim for protection as a bona fide purchaser, even if he could be regarded as a purchaser under such mortgage. — Bynum v. Gold, 106 Ala. 427; Barton v. Barton et al., 75 Ala. 400. The statute is founded upon public policy which is to protect the Avife’s estate as against the influence of her husband or other person, or her OAvn inclination in respect to subjecting it to hem husband’s debts.' Being by the Iuav prohibited to so contract, appellee could not by attempting to do so estop herself to deny her want of poAver. Equity Avill not by setting up an estoppel against her accomplish that which the law and public policy have forbidden.

As the invalidity of the mortgage does not appear except by resort to parol evidence, equity Avill interpose to remove the cloud from appellee’s title Avithout requiring payment of the mortgage debt. — Lansden v. Bone, 90 Ala. 446. And having taken jurisdiction for that purpose Avill settle the Avliole controversy by enjoining the action of ejectment.

No error appears in the decree of the chancery court, and it must be affirmed.