McKenna v. Rowlett , 68 Ala. 186 ( 1880 )

STONE, J.

There is much said in this record about the contract of lease, and there is a controversy as to who committed the first breach of its stipulations. The first breach of the writing (and the writing must control) was the refusal by the appellants to allow the entire accruing rents to be applied to the reimbursment of the moneys expended in repairs by the appellee. The terms of the lease cut no important figure in this controversy, save as the amount expended in repairs constitutes part consideration of the note sought to be collected. Neither is there anything in the contention, that, because the writing stipulates that the moneys expended in repairs were to be repaid in the rents, the complainant in this suit (appellee here) is confined to that single resource or remedy, for the recovery of the moneys thus expended". The conduct of appellants lias placed that measure of redress out of the power of the appellee*. Appellants cannot be heard to complain that appellee does not pursue a remedy, which they, by violating their contract, have rendered impossible.

But there is another view of this case, equally fatal to the . position taken by appellants. Mrs. McKenna owned the property sought to be condemned, by a right and title which constituted it her equitable separate estate. While thus owning that property, she executed the note which this'suit seeks to collect. The simple fact of the execution of the note, fastened a charge upon the equitable separate estate then owned by her, which a court of chancery will enforce, by decreeing a sale of the property for its payment, if necessary.—Collins v. Rudolph, 19 Ala. 616; Cowles v. Morgan, 84 Ala. 535; Caldwell v. Sawyer, 30 Ala. 283; Gunter v. Williams, 40 Ala. 561; Short v. Battle, 52 Ala. 456. The terms of the contract of lease, by which the rents were to be applied to that debt, although executed before the note was given, must, under the circumstances, be treated as an additional security for the payment of the debt evidenced by the note. This would be the rule, if the note were given by one sui juris; and, to the extent of charging her property, a married woman, owning an equitable separate estate, must be regarded as sui juris. The chancellor did not err in decreeing relief to complainant.

When this appeal was taken, the reference had not been executed. Hence, any consideration of questions arising in taking the account would be.premature.

Affirmed.