Ashford v. Watkins , 70 Ala. 156 ( 1881 )

BRICKELL, C. J.

From the earliest history of our legislation, until the enactment of the statute approved April 15th, 1873 (Pamph. Acts, 1872-3, p. 93), which was amended by an act approved February 10th, 1875 (Pamph. Acts, 1874-5, p. 194), the enactment of special, private statutes, relieving particular married women, partially or entirely, from the disabilities of coverture, was a common practice. All such enactments were attributed to the prerogative, rather than to the legislative power of the General Assembly — the power, as parens patries, over the person or property of the citizen resting under legal disabilities; the power exercised in the emancipation of infants, or in the superintendence and control of their persons and estates. These enactments varied in form and in terms, dependent upon the wishes and purposes expressed in the application for their passage. Sometimes, the married woman was, as to property and the rights to property, the capacity to contract, and to sue and be sued, converted into a femme sole, or, as it was most often termed, a free-cLeeiler. In some instances, she was simply invested with capacity to hold property, or her separate earnings, to her separate use; or to receive and hold a legacy, or distributive share, accruing to her; or to hold property with a limited power of disposition j or to mortgage her statutory separate estate, generally, or for specific purposes. ,

These enactments, like the general statute creating and defining the separate estates of married women, have been construed as relieving from, or modifying the disabilities of coverture, only to the extent expressed in them. Beyond their express provisions, the woman has not been regarded as sui juris, or as having larger capacity to contract than she had at the time of their enactment. The uniform construction of the general statute has been, that while it enlarged the capacity of the wife to take and hold property owned-by her at the time of the marriage, or accruing to her subsequently, it did not enlarge her capacity to contract, even in reference to her separate estate, except in the mode and for the purposes pointed out and prescribed.—Alexander v. Saulsbury, Ala. 375; Warfield v. Ravisies, 38 Ala. 518; Bibb v. Pope, 43 Ala. 190. In Hatton v. Weir, 19 Ala. 127, the General Assembly, by joint resolution, authorized a particular married woman “ to take, receive, and hold, by gift, purchase, or inheritance, any property, real or personal, free from the molestation, hindrance, or authority of her husband, and free from any liability to pay his debts or contracts, and the same to dispose of by will, gift or sale, in the same manner as if she were a femme sole.” The resolution was silent as to the capacity of suit; and in the purchase of projierty, for the price, she gave a promissory note; and it was held an action at law thereon could not be maintained. A construction of the resolution which would subject her to a personal suit, it was said by the court, “ would be far beyond the intention of the legislature.”

The act of 1875, of force when the proceedings were had before the chancellor, upon the efficacy of which depends the validity of the mortgage executed by the appellant, contained a clause prohibiting, the subsequent presentation to the General Assembly of any bill “to make any married woman a free-dealer, or invest her with the rights of a free-dealer,” unless such bill was accompanied with a transcript of the record from the Chancery Court,- showing an application to the chancellor in conformity to the act, the refusal of the application, and the reasons for the refusal. This clause may not have been binding on subsequent legislatures; yet, when it is read in connection with the preceding parts of the act, there is manifested a clear legislative intention to delegate to the chancellor, sitting in term time or in vacation, exclusive power to relieve married women from the disabilities of coverture, “so far as to invest them with the right to buy, sell, hold, convey and mortgage real and personal property, and to sice and be sued as afemine sole.” The prohibitory clause is omitted from the re-enactment of the statute by the Code of 1876 (§§ 2731-2), on the theory, perhaps, that it was rendered useless by the section of the constitution of 1875, prohibiting the enactment of “ any special or local laws, for the benefit of individuals or corporations, in eases which are or can be provided for by a general law, or when the relief sought can be given by any court of this State.” The act must be construed as a special private statute, upon the same subject, having in view similar'objects, and the general law creating the statutory estates of married women, were construed. The presumption is, ihat the legislature was informed of the construction these statutes had received, and intended that it should prevail, so far as a purpose to modify or change it is not indicated.

The statute is a delegation to the chancellor, not to the Cham eery Court, of a power that, prior to its enactment, the General. Assembly had reserved to itself, not delegating it to any judicial tribunal or officer. In the absence of the statute, the chancellor could not exercise the power. The statics of a married woman, with its rights and disabilities, the general municipal laws define and establish. The alteration of this status, as to particular persons, does not lie within the original, inherent jurisdiction of any department of the judiciary, as created by the constitution. Deriving the power wholly from the statute, the chancellor, in its exercise, is bounded and limited by the terms of the statute. The power he can exercise, is the power conferred by the statute — no greater or less power, whatever may be the wishes or purposes of suitors, or the real or seeming exigencies and necessities of particular cases. The power is to relieve particular individuals from the general disability the law, upon its own policy, imposes on the class of citizens to which they belong. It is not necessary to say the statute must be subjected to a strict construction; perhaps, in reference to the proceedings it authorizes, a liberal, rather than a strict construction, would be properly extended to it; but it can not be construed as conferring any other power than that which is in terms defined and declared. The power conferred is not the general prerogative power the General Assembly had been accustomed to exercise, of removing entirely the disabilities of coverture, or of removing them only partially, or of investing them with capacity to make particular contracts, or to make particular dispositions of property. The power is precisely defined, and is, “ to relieve married women of the disabilities of coverture, as to their statutory and other sejaarate estates, so far as to im/oest them with the right to buy, sell, hold, con/oey, and mortgage real cmd personal property, and to sue cmd be sued as femmes sole.” This is the power, and there seems to have been much of legislative caution in its expression. A general capacity to contract is carefully withheld; the only contracts authorized are such as touch and concern property. Therefore, in Dreyfus v. Wolffe, 65 Ala. 496, speaking of the statute, we said, “ It is entirely enabling in its purpose. It does not, in general terms, constitute her a free-dealer, or confer on her all the powers of a femme sole. It specifies the extent to which such powers are .conferred. This it does ex mdusinda, for it is twice repeated in the statute.”

The power exercised by the chancellor in the decree rendered, the validity of which is assailed, was not the power expressed in the statute. In some respects, it was larger, and in some narrower, than that power. The appellant, to employ the words of the decree, was “ declared a femm.e sole only so far as to mortgage her said house and lots in order to obtain an addition to the stock of goods and merchandise.” Her capacity as a femm.e sole is limited to a particular disposition, for a particular purpose, of particular property, and would terminate when that, disposition was made. The purpose of the disposition is to enable her to obtain cm addition to her stoefo of goods cmd merchandise. From the application it is apparent she was engaged as a trader in the buying and selling of goods and merchandise, and the continuation of the trade is the very reason and purpose of investing her with power to mortgage this specific real estate — a power the law withholds from married women in respect to'the estates it declares they hold separate from the husband. If the decree is valid, it legalizes the continuation of the trade, and invests her with the capacity of a sole trader in merchandise, — a capacity she has not at common law, or under the statute creating separate estates. Wilder & Co. v. Abernathy, 54 Ala. 644; Dreyfus v. Wolffe, 65 Ala. 496.

-The power the chancellor can exercise, is to relieve the married woman from the disabilities of coverture, to the extent precisely expressed. To that extent, by the decree, her status is changed, and permanently changed — she becomes a fennme sole, and she can not be restored to the condition of a femme covert.—Halliday v. Jones, 57 Ala. 525. If she did not mortgage the house and lots under the power conferred by the decree, her status as a fennme covert would remain unchanged; or if, having mortgaged, she redeemed, her status would be restored. If she mortgaged for any other than the purpose specified, the power conferred would not be exercised, and from the decree 'the mortgage could not derive operation and effect. As to all other of her property, now owned, or which may be subsequently acquired, her tenure is unchanged, and her status is that of a femme covert. The embarrassments attending the administration of the laws concerning the separate estates of married women, which now comprise a large, if not the'larger, part of the lands of the State, the alienation of which is attended with doubt and uncertainty, seriously affecting values, would be multiplied, if particular parts of the estate could be separated, and impressed with a different tenure from that by which the remainder is held. It was not intended to confer on the chancellor authority, or jurisdiction, to relieve a married woman temporarily from the disabilities of coverture, as to particular property, that she could secure by mortgage debts she had not the capacity of contracting. That, in its last analysis, is the effect and operation of the decree, under which the mortgage purports to have been executed by the appellant. The power the chancellor can exercise, and the only power, is to relieve the wife from the disabilities of coverture, as to her statutory or other separate estate, so far as to invest her with the right to buy, sell, hold, convey, and mortgage real and personal property, and to sue and be sued as a femme sole. Beyond this, the chancellor can not exercise jurisdiction. When the power is exercised, the change in the status of the wife is permanent, and it extends to all her property. It is relief from the disabilities of coverture, the grant of capacity to buy, sell, &c., only as to her statutory or other separate estate, which is intended by the statute, and so in terms expressed.

The decree, like all judicial sentences, depends for validity on the jurisdiction of the chancellor. The want of jurisdiction to change, temporarily and partially, the status of the appellant as a married woman — to convert her into a femme sole for a specific purpose, and as to specific property — renders the decree void. The mortgage rests for its validity, of consequence, wholly on the power of husband and wife to mortgage the statutory separate estate. While husband and wife may, by an instrument in writing executed in the mode prescribed by the statute, sell, they can not pledge or mortgage the sepárate estate of the wife. A mortgage of it is simply void — void at law and in equity.—Peeples v. Stalla, 57 Ala. 53; Chapman v. Abrahams, 61 Ala. 108; Shulman v. Fitzpatrick, 62 Ala. 571.

The decree of the chancellor must be reversed, and a decree will be here rendered, granting relief to the appellant.