Armstrong v. Connor

86 Ala. 350

• Court: Supreme Court of Alabama
• Decided: December 15, 1888
• Status: Published

Opinion

STONE, C. J.

If the bill in this case had shown that complainant had a legal title to the land on which she could have sued at law, then, being out of possession, she could obtain no relief in chancery, on a bill which had no other equitable aim than a removal of a cloud from her title. Peebles v. Burns, 77 Ala. 290. And a mortgage executed by husband and wife, by which they attempt to convey her statutory separate estate, if executed prior 'to our late statute on the subject — February 28, 1887 — is absolutely void, and opposes no bar to the assertion of her right in a court of law. — 3 Brick. Dig. 553, §§ 153 et seq.

The question, however, is very different, when the husband and wife execute a deed of conveyance, absolute in form, and upon a recited valuable consideration. The statute conferred on them the right to sell and convey; and if on its face the deed purported to conform to its requirements, the legal title would thereby be devested out of the wife. — Code of 1876, § 2707; 3 Brick. Dig. 552, §§ 140 et seq. In such case, the wife, whether in or out of possession, had no redress at law, but could be relieved in the Chancery Court. — Snyder v. Glover, 75 Ala. 379; Harden v. Darwin, 77 Ala. 472; 3 Pom. Eq. § 1399, and note.

In dismissing the .bill for want of equity the chancellor erred.

Reversed and remanded.