McCravey's Adm'r v. Todd , 66 Ala. 315 ( 1880 )

STONE, J.

The relief claimed in the.present suit assumes two Aspects. We will first consider the question of the liability of Mrs. Todd's residence to the claim of complainant. When the materials and services were furnished by appellant’s intestate, for the repairs and improvement of the dwelling-house, Mrs. Todd was a married woman, and her title to ’the property improved was her statutory separate estate. When she and her husband executed the bond, or bill single, which is the foundation of this suit, she was still a married woman. This was June 26th, 1868 ; and the bond recites that its consideration is “.lumber and labor in building and repairs ” on the residence. Neither the character of the materials and work furnished, nor the giving of the bond or bill single, constituted this claim a charge on her statutory separate estate.—Ridley and Wife v. Hereford & Timberlake, at the present term, and authorities cited.

It is contended for appellant that, because Mrs. Todd, after she became discovert by the death of her husband, used the improvements put upon her residence as a leverage in effecting a compromise with Cabaniss and the Northern Bank of Alabama, and because she employed the same claim as a purchasing fund in securing her residence, when sold under the decrees rendered in favor of those parties, she thereby fastened a charge on the property to repay to Mr. McCravey, for his services and materials she had thus utilized. Since'the statutes were, enacted, securing to married women their separate estates, numerous cases, have come to this court, which have called for a definition of the methods by which such estate can be charged. Many of them are collected in Lee v. Tannenbaum, 62 Ala. 501. See, also, Gans v. Williams, Ib. 41; Conley v. Blue, Ib. 77; Hooks v. Brown, Ib. 258; Shulman v. Fitzpatrick, Ib. 571. From the beginning, we have steadfastly held, that our statutes do not convert married women into femmes sole, or clothe them with powers other than those conferred by the statutes. They can enter into no contract for the payment of money, which will bind them personally; and their estates, so held, can be charged only to the extent, and in the mode prescribed by the statute. If, by death or otherwise, the statutory remedy given be rendered inapplicable, the power to charge fails with the remedy. The present alleged liability was utterly inoperative and void, when the services were rendered. We are unwilling to take a step, beyond any heretofore taken, and declare a trust on statutory separate estates, on a foundation which all our decisions declare void.—Vance v. Wells, 8 Ala. 399; Fry v. Hamner, 50 Ala. 52; 1 Addison on Contr., 3rd Amer. ed., § 13, and note 1. The complainant is entitled to no relief against the property known as the family residence.

When the bond, or bill single was executed, Mrs. Todd owned the store-house and lot, her equitable separate estate. That bond fastened a charge on that piece of property for its payment.—Cowles v. Morgan, 34 Ala. 535; 2 Brick. Dig. 86, § 211. It is urged for appellees, that the proceedings by the Northern Bank of Alabama, and sale thereunder, devested all the title Mrs. Todd acquired under the deed of her father, and left in her no equitable separate estate, upon which her bond could fasten an equitable charge. The argument is, that, by the decree in that cause, the deed under which she held was pronounced fraudulent and void as against the debts of Turner, her grantor, the property ordered to be sold, and sold, in payment of his debts, and that she became the purchaser, thus losing all right and property under the first deed, and holding only under the register’s sale and conveyance.

If the chancery decree had been rendered in the ordinary way, in a suit conducted at arms’ length, and she, being the highest bidder, had become the purchaser, we would not hesitate to declare her second title clear, and relieved of all trusts her bond had fastened upon it. Her title would then rest alone on her second deed, and she would own, and could claim, nothing under the first. But that is not the condition of this case. The whole controversy was compromised, and the property was sold, practically, under a consent decree— a decree, not to sell the property to the highest bidder, in payment, or part payment of the bank’s claim of seventeen thousand dollars; but, a decree of sale, with a contemporaneous agreement that Mrs. Todd should become the purchaser, paying no cask, except the costs of the suit; and that, cost what the property might, she was then to assume to pay the bank three thousand dollars, and to execute a mortgage on the store-house and lot to secure its payment. This was to be in full satisfaction of the bank’s claim on the property ; and even the costs were paid out.of rents of the store-house, realized during the litigation. This agreement was carried into effect, the property sold, and Mrs. Todd became the purchaser, paid no money except the costs, received a deed, and executed a mortgage on the property to secure the payment of the three thousand dollars. Whether that debt has been paid, the record does not inform us. There is nothing in the averments of the bill, relating to the suits and sale referred to, which can raise them to the dignity of judicial proceedings, so far as the interests of strangers can be affected thereby.—Sims v. Lee, at present term. The case stands as if no suits had ever been instituted by Cabaniss or the Northern Bank of Alabama, and Mrs. .Todd' had, by private arrangement, executed her note and mortgage on the property, in exoneration of its liability for the alleged debt of Turner. The effect of the arrangement was, that Mrs. Todd, by her mortgage, fastened a prior lien on the property for the amount of the debt thereby secured, and interest upon it. All the residue of the ownership in the store and lot' — an equity of redemption — remained the equitable separate estate of Mrs. Todd, subject to the charge created by the bond; and the' chancellor should have so decreed.

Reversed and' remanded.

BrickeIiL, O. J., not sitting.