Price v. Cooper , 123 Ala. 392 ( 1898 )

TYSON, J.

In an action of ejectment tlie plaintiff must recover upon the strength of her own title as against a defendant in possession under color of title. And such defendant may show an outstanding title in a third person for the purpose of defeating a recovery. — 3 Brick. Dig. 325, § 38.

The rule permitting the plaintiff to recover upon prior possession alone unless it has ripened into a perfect title by adverse possession, and refusing to a defendant the right to set up an outstanding title in a third' person without connecting himself with it, applies only in cases where the defendant is a trespasser. — 3 Brick. Dig. 325, § 49.

The mortgage, the deed from Hayes to Frazier, and the deed from Frazier and wife to the defendant, were properly admitted in evidence.

The material question, however, arises upon the refusal of the court to allow the plaintiff to prove that the mortgage executed by herself and husband to, II. B. Richards Company, purporting to convey her hinds, was given to secure the debt of her husband, and that she was. a mere surety for him. In this ruling tiie court ivas in error. The opinion in the case of Richardson v. Stephens, 122 Ala. 301, rendered at the present term of this court is conclusive upon this point, unless it is overruled as we arc', asked to do. We have no inclination to disturb the doctrine there declared, but on the contrary, wish to be understood as liere reaffirming its correctness. Whatever may have been the rule in courts of law, prior to the adoption of the provision now found in the statute prohibiting tlm wife from directly or indirectly becoming the surely of the husband (§ 2529), as to the admission of parol evidence contradicting the recitals of a mortgage given by the wife to secure the husband’s debt, certainly it can now be done. The mortgage is absolutely void and in contravention of the, statute. No principle is better settled than that where a contract is in violation of a statute, it is void as against public policy, incapable of ratification, and may he shown to he such in any court/ — 3 Brick. Dig. 145, S § 58 and Gl.

Reversed and remanded.