Dinkins v. Latham , 154 Ala. 90 ( 1907 )

HARALSON, J.

Section 2528 of the Code of 1896 forbids the wife to alienate or mortgage her lands, or any interest in them, Avithout the assent and concurrence of her husband, his assent and concurrence to be manifested by his joining in the alienation in the mode prescribed by law for tlie execution of conveyances of land.- — High v. Whitfield, 130 Ala. 444, 30 South. 449.

It appears without dispute, that on the 5th of Janffi ary, 1895, Mrs. Sallie B. Dinkins, a married woman, and the wife of S. M. Dinkins, owned and was in the possession of the land sued for. Upon that date, Mrs. Din-kins borrowed from Mrs. C. W. Rudolph, $2,000, and gave to Mrs. Rudolph her own note evidencing the debt, in Avhich note her said husband did not join, but upon which he indorsed the words, “I hereby consent that my wife may sign this note.” To secure the payment of this loan, and on the day of the loan, Mrs. Dinkins executed a mortgage, Avhich recites, “To secure the payment of my note to Mrs. C. W. Rudolph, of even date hereAvith, for the sum of $2,000, payable January 1, 1895, I hereby grant, bargain, sell and convey to the said C. W. Rudolph the following described real estate” (describing it). The mortgage concludes, “Given under our hands and seals, this the 5th day of January, 1895,? and was signed “Sallie B. Dinkins, Seal), S. M.- Dinkins, (Seal),” attested by C. D. Whitman, J. P., and was separately acknoAAdedged' on the same day, before said justice of the peace, and recorded in the probate office of the county on the 21st of February, 1899. This mortgage contained a power of sale for its foreclosure, if default were made in the payment of said note, and proceeds of sale to be applied to the cost of foreclosure sale, then to the payment of said note and interest, and the balance, if any, to be paid to the said Sallie B. Dinkins, and the mortgagee Avas authorized to purchase at the sale. Default having been made, said mortgage was foreclosed (Mrs. Dinkins having died on the 17th of September, 1896, before the foreclosure sale).

It is not denied that this mortgage is the basis of the claim of defendant to the land in question, and that if said mortgage of Mrs. Dinkins is void, because not executed in the manner prescribed by statute, the defendant has no title to the land.

It appears that the name of the husband, S. M. Din-kins, nowhere appears in the mortgage as one of the grantors therein. We refer to several of our decisions which, as appear to us, are decisive of the question involved — that the husband was not a party to said mortgage, and that, as a conveyance of the legal title, by the wife, was, on that account, inoperative and void.

In Harrison v. Simons, 55 Ala. 510, many times cited and approved in this court, it ivas held that where several persons are named in a deed as grantors, and their signatures and seals are affixed to it, another person who is not named in it, although his signature and seal are affixed, is not one of the grantors, and the deed does not pass his interest in the land. In that deed, the attesting clause was, “In testimony of all which, we hereunto set our seals” — giving date.

In Rushton v. Davis, 127 Ala. 280, 28 South. 476, it was held — copying the second head note — that “while a deed from a married woman conveying her lands, in the body of which the name of her husband does not appear as grantor, but which was signed and acknowledged by both the wife and her husband, is void and ineffective to divest out of the .wife the legal title to the land, because the husband did not join therein as grantor as required by statute.” — Code 1806, S 2528.

In Blythe v. Dargin, 68 Ala. 370, construing a deed by a married woman, in which the name of her husband did not appear as grantor, but which was signed by him, and which contained n.o words of conveyance passing or evidencing an intention to pass his estate or interest in the -lands, it was held, that the deed was merely the void deed of the wife, to which the husband was not a party, and to which his concurrence was not expressed in the mode prescribed by the statute.

In Sheldon v. Carter, 90 Ala. 381, 8 South. 64, it was said: “We have several decisions which hold that, when a deed of conveyance is subscribed by more names than one, and some of the subscribers’ names are not shown in the body, or granting clause, such instrument is not the deed of those whose names are omitted from the granting clause, and shown only in the signatures.”

Again, it was held in Davidson v. Cox, 112 Ala. 510, 20 South. 500, that the mere signature of the husband; to his wife’s deed, purporting to convey her land, the wife’s name only appearing in the body of the instrument, is not an efficacious manifestation of the husband’s assent and concurrence in the conveyance, as required by statute, and such instrument is but the void deed of the wife, and ineffective to pass title. To the same effect is Johnson v. Goff, 116 Ala. 648, 22 South. 995.

In the mortgage in question, it plainly enough appears that it was the conveyance of the wife alone. It was given to secure her individual note, to which the husband was not a party, but to the execution of which by his wife, he gave his assent by indorsing it thereon. The mortgage recites, that it was given to secure my note, and for that purpose I hereby grant, etc.

It is contended that because in the attesting clause it is recited: “Given under our hands and seals,” etc., that this made it the deed of the husband as well as that of the wife. But to this we cannot assent. “Our” in this mortgage, was not more efficacious to make it the deed of the husband, than the word “we,” employed in a similar connection in Harrison v. Simons, supra. The word cannot by any fair rule of interpretation be made to mean that it was the husband’s deed.

It follows, that the court erred in overruling the-plaintiff’s objections to the introduction of the instruments admitted in evidence to show title in defendant.

' It is contended, however, that Dinkins induced the defendant, Latham, to buy the land, and that this raised an equitable estoppel against him, to assert a legal title against defendant. From the agreed statement of facts, it appears that O. W. Rudolph foreclosed the mortgage of the 5th of January, 1895, given by Sallie B. Dinkins to her, and became the purchaser at the foreclosure sale. The fourth section of the agreement is, “That on the 26th of January, 1891, said C. W. Rudolph executed a deed of said property to the defendant, Latham, and to his brother, S. A. Latham, the said S. A. Latham having since conveyed to the defendant; that contemporaneously with, and as a part of the transaction by which said Latham purchased said property, said S. M. Dinkins, the husband of said Sallie B. Dinkins (who had died, September 17, 1890, prior to said foreclosure), entered into an agreement Avith said Latham, a copy of which is hereto attached as exhibit D; that Latham, on the faith of said deed and agreement, paid said C. W. Rudolph, the amount named as the consideration of said deed, and S. M. Dinkins, who was then in possession of said property as tenant of Mrs. Rudolph, retained the possession thereof under said agreement Avith said Latham, until the 29th day of December, 1901; that said S. M. Dinkins, having failed to pay the first installment agreed by him to be paid, surrendered the possession of said property to said Latham, at the end of the year 1901, and that said Latham and the defendant as purchaser from his brother, S. A. Latham have remained in possession ever since, claiming said property as their and his own.”

Exhibit D, referred to in said agreement, as quoted above, is an agreement on the part of the Lathams to convey the property to S. M. Dinkins, upon the payment by him, in stated installments, of a sum of money equal to the amount paid by the Lathams to C. W. Rudolph, viz: $2,969.88. S. M. Dinkins never conveyed, nor attempted to convey, by deed the property to the Lathams or to either of them. If he had a life estate in the property at the beginning of these negotiations, he continued to have it at their end. The agreement contained in “Exhibit D,” is a promise on,the part of the Lathams, that they will convey their title to Dinkins upon the performance by him of the conditions set out in said agreement, viz.: the payment of said sum of $2,969.88. It was in effect a bond for title. Said Dinkins never complied with the conditions stipulated in said agreement, which agreement also provides, in case of default in the payment, of said amount agreed to be paid by said Dinkins, that “any amounts that may have been paid by the said S. M. Dinkins shall be considered and held as rent, and that the right of S. M. Dinkins to purchase under this contract shall cease, and the possession of said land shall revert to said parties of the first part — the said Lathams.

The question arises, has S. M. Dinkins estopped himself from asserting his legal title, which he has never conveyed, to this property in a court of law, in an action of ejectment?

We need not decide what would be the result, if this suit related to personal property, or if it were one in equity between these parties in respect to the title to the land. But, in a suit in ejectment when the legal title to the land is involved, the defense of equitable estoppel cannot prevail. In Doe ex dem. McPherson v. Walters, 16 Ala. 714, 50 Am. Dec. 200 — quoting from the headnote, which is in accordance with the decision — it is held: “If one, seized in a fee in land, induces another to purchase it at execution sale, as the property of a third person, he is not estopped in a court of law from asserting his title against the purchaser. In such case, a court of equity alone is competent to afford relief.” In the course of the opinion, this language is used: “The better course, in my opinion, is to pursue the well-settled rule of law, and to permit the legal title to prevail at law, regardless of the equity the opposite party may have, and leave him to enforce his equitable rights in a court of chancery, which has power not only to arrest or enjoin the suit at law, but also to decree a conveyance of the legal title to him, who in equity is entitled to it.”

In Morgan v. Casey, 73 Ala. 226, which was an action in ejectment, it was said: “In such actions the equitable title cannot be interposed, in a court of law, to defeat the legal title. Hence, it would be no defense to this action that the purchase money for the lands was all paid, and distributed among the heirs or devisees by the executors who made the sale under the authority of the probate court. Such payment would not operate at law, as an estoppel either against those receiving the purchase money, or against the administrator de bonis non.” Citing Allen v. Kellam, 69 Ala. 442; Collins v. Johnson, 57 Ala. 304; Robertson v. Bradford, 70 Ala. 385; Whitehead v. Jones, 56 Ala. 152; Harrison v. Parmer, 76 Ala. 157; Woods v. Montevallo Coal, etc., Co., 84 Ala. 560, 3 South. 475, 5 Am. St. Rep. 393.

Again, if this were not sufficient, it was said in Hooper v. Columbus & W. Ry. Co., 78 Ala. 216: “It has been uniformly held by this court, that ‘a court of law will not look to, or consider the equity of a party, in opposition to the legal title of the other,’ and that a court of equity was the only proper forum in which the purchaser of an equitable title could protect himself by invoking the doctrine of equitable estoppel.” Citing McPherson v. Walters, 16 Ala. 714, 50 Am. Dec. 200; Smith v. Mundy, 18 Ala. 182, 52 Am. Dec. 221; Kelly v. Hendricks, 57 Ala. 193; Lehman v. Bryan, 67 Ala. 558; Tutwiler v. Munford, 73 Ala. 308.

It follows from these authorities, that the defense of equitable estoppel, attempted to be invoked, must fail.

Reversed and remanded.

Dowdell, Denson and McClellan, JJ., concur. Tyson, C. J., and Simpson and Anderson, JJ., entertain the opinion that the mortgage was valid and that the judgment should be affirmed. Tyson, C. J., and Simpson, J., express no opinion upon the question of estoppel.