Heard v. Hicks , 82 Ala. 484 ( 1886 )

CLOPTON, J.

— No principle of law is more decisively settled, than that a conveyance of her statutory separate estate by a marrfid woman, whose disabilities of coverture have not been removed, whether by mortgage or absolute deed, as security for, or in consideration of the debt of her husband, is void under our statutes. The conditions existing, the invalidity can not be avoided by any circuitous line or series of conveyances. A mortgage by a married woman and her husband of" her statutory separate estate, as security for the debt of her husband, followed by an absolute conveyance in payment of the debt, and a subsequent sale and conveyance to the husband, with a mortgage by husband and wife to secure the purchase-money, are each and all invalid, no rights of third persons intervening. Fraud in the execution of the conveyances is not requisite to the interposition of a court of equity, at the instance of the wife, to rescind and cancel them, and remove the cloud thereby cast on her title. The averments of the bill show that the complainant is a married woman ; that the land is her statutory separate estate ; that the several conveyances were made solely as security for, and in consideration of the debt of her husband; and that she is in possession. The complainant is not required to prove fraud, though charged. In such case, a charge of fraud is immaterial, and surplusage. The equity of the bill rests on other and independent ground. — Williams v. Bass, 57 Ala. 487; Boyleston v. Farrior, 64 Ala. 564; Simms v. Kelly, 70 Ala. 429.

The demurrer was properly overruled.

Affirmed.