Dacus v. Streety , 59 Ala. 183 ( 1877 )

BRICKELL, C. J.—

The statutes creating the separate-estates of married women, have not enlarged their capacity of contracting. The disability, the common law imposes, remains except as to an alienation and conveyance of her statutory estate, made by husband and wife jointly. The contract by which Mrs. Dacus gave her promissory notes for the debt of her husband, whether the notes were given as collateral security, or in purchase of the mortgage, is void, not voidable. There are contracts into which she may enter, that a court of equity will not permit her to repudiate, and yet keep the benefits acquired by them. If she purchases lands, she can not retain them without paying the purchase-money. Or if she gives.her own note for the purchase-money,, receives a conveyance from the vendor, and in her own name, without the concurrence of her husband, executes a mortgage on the lands for the security of the notes, a court of equity will decree that the mortgage shall stand as a valid security, binding the lands, though imposing on her no personal liability.—Leach v. Noyes, 45 N. H. 364; Hatch v. Morris, 3 Edw. Ch. 313; Chilton v. Braichen, 2 Black, 458; Maries v. Cowles, 53 Ala. 499. The only transfer of the mortgage to Mrs. Dacus was by delivery merely. Such a transfer-under any circumstances could create only an equity. It does not in a court of law pass the mortgage debt, or any right in or to the mortgaged premises. A court of equity may give effect to it, according to the intention of the parties. It must however, to invoke the interference of that-court be supported by a valuable consideration. In the absence of such a consideration, parties are left to stand on their legal rights and remedies. If Mrs. Dacus had paid the notes, she could doubtless have compelled a transfer to her of the mortgage debt, and of the mortgage. -Such payment alone, would give her an equity which can be enforced.. The contract with her being without legal validity, the mortgage remains an operative and valid security for the mortgage debt, and the debt being unpaid in part, the mortgagees are entitled to a foreclosure.

The claim set up by the cross-bill for a reclamation of the payments made by Mrs. Dacus on her notes, can not be supported. A party seeking relief whether by original or cross-bill, must show his right by clear and distinct averments. The cross-bill, and the proof in support of it, are alike silent,, as to the kind of separate estate, of which Mrs. Dacus was possessed—whether it was a statutory, or an equitable estate, and also silent as to whether the payments, were of moneys derived from the corpus, or the income. If her estate was equitable, in the absence of restraining limitations imposed by the instrument creating'it, her capacita to make the payments, would be that of a feme sole, and she would be without. equity to reclaim them. All that she could claim, would be an enforcement of the equity to a transfer of the mortgage,, and the mortgage debt, on making payment of her notes. On the other hand, if the estate was statutory, and the moneys were derived from the income, and not the corpus, she would be without right to reclaim them. , We abstain from expressing any opinion on the right of reclamation, if the moneys were derived from the corpus of the statutory estate of the wife. The cross-bill, nor the proof present that question. Reel v. Overall, 39 Ala. 138.

The chancellor erred in decreeing a sale of the entire mortgaged premises, without distinguishing between the parts sold by the mortgagor, and the part remaining unsold. The principle which has been adopted in this State, is, that if mortgaged lands are sold in several parcels, at different times, to different purchasers, by the mortgagor, on decreeing a foreclosure, a sale must be ordered first of the lands undisposed of by the mortgagor, and then the parcels sold, in the inverse order of their alienation.—Mobile M. & D. Ins. Co. v. Huber, 35 Ala. 713. The decree must therefore be corrected, and a sale ordered first of the part of the premises, not sold by the mortgagor, and if the proceeds of such sale shall not be sufficient for the payment of the mortgage debt, and interest, and the costs of suit, then the parcel of land conveyed to Hiram Mushat, must be sold for the payment of’ the balance remaining unpaid; and if the proceeds of such sale, will not pay such balance, then the parcel of land conveyed to Jane Lloyd, must be sold. The decree being thus • corrected, will be affirmed, at the costs of the appellee.