Denniston v. Alabama Gold Life Insurance ( 1882 )

STONE, J.

— The averment in the amended bill, by which it is attempted to show Mrs. Denniston had an equitable separate estate in the lot mortgaged, is that it was conveyed to the husband and wife “and their heirs and assigns, to their own use and behoof in fee simple.” This clause contains no word that excludes the marital rights of the husband, and consequently fails to show that Mrs. Denniston’s right in and to the lot was an equitable separate estate. It is not shown she had any power to make the mortgage. — Coleman v. Smith, 55 Ala. 368; Conner v. Williams, 57 Ala. 131; Millar v. Voss, 62 Ala. 122.

The averments as to the incorporation, powers and purposes of the complainant corporation, are scarcely sufficient. True, the note and mortgage, on their face, estop the mortgagors from disputing that the company was properly organized. It does not sufficiently show the purpose and powers of the corporation. These should be stated as facts, and not as conclusions. While we would not hold it necessary to set out the whole charter, it would be much safer to state, as fact, enough of the charter to show the business proposed to be engaged in ; and if the power claimed be not one implied in the name and purpose of the corporation, it would be well to state, as fact, the language of the charter under which the right is asserted. As this question is not fully presented, we will not discuss it. — McDonald v. Mobile Life Ins. Co., 56 Ala. 468; Forsyth v. Preer, 62 Ala. 443; City Council v. M. & W. Plank Road Co., 31 Ala. 76; Peaty v. Knowler, 4 Pet. 152; Angel & Ames on Corp. §§ 111, 256-8, 263, 266, 270-1; Utica Ins. Co. v. Scott, 19 Johns. 1.

We will not strike out the assignments of error. — Brock v. S. & W. Railroad Co., 65 Ala. 79.

The demurrer to the bill as amended ought to have been sustained, so far as it seeks to .charge the property of Mrs. Denniston; but inasmuch as we can not know what amendments may be offered in the court below, we will remand the cause, with directions that the chancellor conform his rulings to the principles declared above. The decretal order of the chancellor is reversed, and the cause remanded.