STONE, J.
The strongest view of the bill which can be taken — the one most favorable to appellant — is that Lock-hart paid the money to Clark for, and at the request of Mrs. Chapman. This extinguished the debt which Mr. and Mrs. Chapman owed, and created a new debt, or legal liability to Lockhart. It was no transfer of the original demand to Lockhart. If such had been its effect, then any defense which Chapman and wife might have against Clark, could have been successfully urged against Lockhart. Paying the debt at request, Lockhart became a new creditor on a new consideration, and could not be affected by any infirmity in the original consideration. On such debt indebitatus assumpsit would lie in favor of Lockhart, irrespective of the char[113] acter, form, or validity of the debt he had thus extinguished. 1 Chit. Pl. 100, 350. It did not transfer the debt, or vend- or’s lien to Lockhart. — Pettus v. McKinney, 56 Ala. 41; Foster v. Athenæum, 3 Ala. 302; Dennis v. Williams, 40 Ala. 633; Conner v. Bates, 18 Ala. 42.
There is no resulting trust in this case.— Tilford v. Torrey, 53 Ala. 120; Preston & Stetson v. McMillan, 58 Ala. 84.
It results from the foregoing principles that the Chancery Court did not err in sustaining the second ground of demurrer. Mrs. Abrahams can take nothing by her appeal in this cause, but must pay the costs incurred therein. This disposes of the only ground of demurrer which the chancellor sustained, and of the only error assigned by her.
Appellees have also assigned errors, pursuant to their appeal and the agreement found in the record. "We will first consider those assigned by the heirs-at-law, children, and personal representative of Mrs. Chapman. One ground of demurrer assigned in the court below is, that Mrs. Chapman was a married woman when she executed the note and mortgage, that the lands conveyed were her statutory separate estate, and that the note and mortgage are inoperative as to her and her property. The bill avers that the lands were the separate estate of Mrs. Chapman, purchased and conveyed to her during her coverture, and her title-deed to the property from Clark, the grantor, is made part of the bill. It bears date in February, 1871, and conveys the land to her, without any words excluding her husband’s marital rights. The bill and entire record are silent as to the source from which the money was derived, with which the cash payment for the land was made, and there is no averment that, previous to the purchase of the land in controversy, Mrs. Chapman had, or had not a separate estate. These unexplained averments constitute her claim a statutory separate estate. Short v. Battle, 52 Ala. 456. If this were even doubtful, under the rule laid down in Reel v. Overall, 39 Ala. 838, we would feel bound to hold that the averments of the present bill do not show that Mrs. Chapman owned an equitable separate estate. Her estate then, for the purposes of this suit, must be treated as a statutory separate estate. Indeed, the mortgage, which the bill seeks to foreclose, declares that the lands are the separate estate of the wife. This ease, then, presents the simple question of a mortgage by husband and wife of the wife’s statutory separate estate, to secure a debt not incurred in the purchase of the property, but in procuring money with which to pay for property previously [114] purchased. We have uniformly held that such mortgage is ineffectual to bind the statutory estate of a married woman. Battle v. Short, supra; McDonald v. Mobile Life Ins. Co., manuscript; Jones v. Wilson, 57 Ala. 123; O’Connor v. Chamberlain, 59 Ala. 431.
The defendant Samuel E. Chapman, husband and co-mortgagor with Martha E. Chapman, also demurred separately to the bill, assigning the same grounds of demurrer as those assigned by the administrator of his deceased wife. She had died intestate before the present bill was filed. As we have said, the lands conveyed by the mortgage are therein described as the separate estate of Mrs. Chapman. The conveyance is by both. It contains the words “ grant, bargain, sell and convey,” and in addition, the following express covenant of warranty: “We covenant to warrant and defend the title to the said land to the said Lockhart, his heirs or assigns, against the lawful claims of all persons.” Mrs. Chapman having died intestate, soon after the execution of the mortgage, Samuel E. Chapman, her surviving husband, succeeded to a life-estate in her lands. Does that life-estate pass by the covenants in the mortgage ?
It is settled in this State that if one, having at the time no title, convey lands by warranty — even the warranty which the law implies from the employment of the words grant, bargain, sell or convey — and afterwards acquire title, such title will enure and pass eo instanti to his vendee. This, by a species of estoppel. — Stewart v. Anderson, 10 Ala. 504; McGee v. Eustis, 5 Stew. & Por. 426; Kennedy v. McCartney, 4 Por. 141; Carter v. Doe, ex dem. Chaudron, 21 Ala. 72, 91. In the case of Blakeslee v. Mobile Life Insurance Co. 57 Ala. 205, there was an equitable life estate in the wife, remainder in fee to her children. A mortgage on the lands was executed, in which husband, wife and their two children joined; one of the children adult, and the other a minor. The mortgage was made to secure a debt o'f the husband, and contained the words “ grant, bargain and sell.” The minor child, grantor, died, leaving his adult sister, co-mortgagor, his sole heir-at-law. The question was, whether this interest, which descended from the minor to his adult sister, passed by the implied covenants in her mortgage. We held that it did. Our language was, “ admitting the invalidity of the mortgage by the minor, his estate having descended to his sister as sole heir, the words used in the conveyance, under the statute, imply a covenant of warranty, [115] and estop her from asserting the title thus acquired against the mortgagee.”
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STONE, J.
The strongest view of the bill which can be taken — the one most favorable to appellant — is that Lock-hart paid the money to Clark for, and at the request of Mrs. Chapman. This extinguished the debt which Mr. and Mrs. Chapman owed, and created a new debt, or legal liability to Lockhart. It was no transfer of the original demand to Lockhart. If such had been its effect, then any defense which Chapman and wife might have against Clark, could have been successfully urged against Lockhart. Paying the debt at request, Lockhart became a new creditor on a new consideration, and could not be affected by any infirmity in the original consideration. On such debt indebitatus assumpsit would lie in favor of Lockhart, irrespective of the char[113] acter, form, or validity of the debt he had thus extinguished. 1 Chit. Pl. 100, 350. It did not transfer the debt, or vend- or’s lien to Lockhart. — Pettus v. McKinney, 56 Ala. 41; Foster v. Athenæum, 3 Ala. 302; Dennis v. Williams, 40 Ala. 633; Conner v. Bates, 18 Ala. 42.
There is no resulting trust in this case.— Tilford v. Torrey, 53 Ala. 120; Preston & Stetson v. McMillan, 58 Ala. 84.
It results from the foregoing principles that the Chancery Court did not err in sustaining the second ground of demurrer. Mrs. Abrahams can take nothing by her appeal in this cause, but must pay the costs incurred therein. This disposes of the only ground of demurrer which the chancellor sustained, and of the only error assigned by her.
Appellees have also assigned errors, pursuant to their appeal and the agreement found in the record. "We will first consider those assigned by the heirs-at-law, children, and personal representative of Mrs. Chapman. One ground of demurrer assigned in the court below is, that Mrs. Chapman was a married woman when she executed the note and mortgage, that the lands conveyed were her statutory separate estate, and that the note and mortgage are inoperative as to her and her property. The bill avers that the lands were the separate estate of Mrs. Chapman, purchased and conveyed to her during her coverture, and her title-deed to the property from Clark, the grantor, is made part of the bill. It bears date in February, 1871, and conveys the land to her, without any words excluding her husband’s marital rights. The bill and entire record are silent as to the source from which the money was derived, with which the cash payment for the land was made, and there is no averment that, previous to the purchase of the land in controversy, Mrs. Chapman had, or had not a separate estate. These unexplained averments constitute her claim a statutory separate estate. Short v. Battle, 52 Ala. 456. If this were even doubtful, under the rule laid down in Reel v. Overall, 39 Ala. 838, we would feel bound to hold that the averments of the present bill do not show that Mrs. Chapman owned an equitable separate estate. Her estate then, for the purposes of this suit, must be treated as a statutory separate estate. Indeed, the mortgage, which the bill seeks to foreclose, declares that the lands are the separate estate of the wife. This ease, then, presents the simple question of a mortgage by husband and wife of the wife’s statutory separate estate, to secure a debt not incurred in the purchase of the property, but in procuring money with which to pay for property previously [114] purchased. We have uniformly held that such mortgage is ineffectual to bind the statutory estate of a married woman. Battle v. Short, supra; McDonald v. Mobile Life Ins. Co., manuscript; Jones v. Wilson, 57 Ala. 123; O’Connor v. Chamberlain, 59 Ala. 431.
The defendant Samuel E. Chapman, husband and co-mortgagor with Martha E. Chapman, also demurred separately to the bill, assigning the same grounds of demurrer as those assigned by the administrator of his deceased wife. She had died intestate before the present bill was filed. As we have said, the lands conveyed by the mortgage are therein described as the separate estate of Mrs. Chapman. The conveyance is by both. It contains the words “ grant, bargain, sell and convey,” and in addition, the following express covenant of warranty: “We covenant to warrant and defend the title to the said land to the said Lockhart, his heirs or assigns, against the lawful claims of all persons.” Mrs. Chapman having died intestate, soon after the execution of the mortgage, Samuel E. Chapman, her surviving husband, succeeded to a life-estate in her lands. Does that life-estate pass by the covenants in the mortgage ?
It is settled in this State that if one, having at the time no title, convey lands by warranty — even the warranty which the law implies from the employment of the words grant, bargain, sell or convey — and afterwards acquire title, such title will enure and pass eo instanti to his vendee. This, by a species of estoppel. — Stewart v. Anderson, 10 Ala. 504; McGee v. Eustis, 5 Stew. & Por. 426; Kennedy v. McCartney, 4 Por. 141; Carter v. Doe, ex dem. Chaudron, 21 Ala. 72, 91. In the case of Blakeslee v. Mobile Life Insurance Co. 57 Ala. 205, there was an equitable life estate in the wife, remainder in fee to her children. A mortgage on the lands was executed, in which husband, wife and their two children joined; one of the children adult, and the other a minor. The mortgage was made to secure a debt o'f the husband, and contained the words “ grant, bargain and sell.” The minor child, grantor, died, leaving his adult sister, co-mortgagor, his sole heir-at-law. The question was, whether this interest, which descended from the minor to his adult sister, passed by the implied covenants in her mortgage. We held that it did. Our language was, “ admitting the invalidity of the mortgage by the minor, his estate having descended to his sister as sole heir, the words used in the conveyance, under the statute, imply a covenant of warranty, [115] and estop her from asserting the title thus acquired against the mortgagee.”
It is contended that the mortgage made by Mrs. Chapman was void, and that therefore the doctrine of estoppel does not apply. The mortgage was certainly inoperative as against Airs. Chapman, and therefore no one could be estopped by force of the covenants she entered into. Such was the decision in Kennedy v. McCartney, supra. But that is not this case. While the mortgage had no effect whatever as a conveyance by Airs. Chapman, Samuel E. Chapman was under no disability, and his covenants bind him. The case of Wellborn v. Frisby, 7 Jones’ Law, 228, is not distinguishable from this. The opinion in that case is an able one by C. J. Pearson. The principle of the decision will be readily comprehended from the following extract: “ The deed of Wellborn and wife, as we have seen above, did not take effect as to her. Nor did it operate at the date of its execution in 1800, to pass any estate from Wellborn; for he then had no interest in the land. He was married 1794, and had issue born alive, but he did not become tenant by the curtesy initiate in the trust estate of his wife; for, in order to do that, there must be an actual seizin in regard to a legal estate, or something equivalent to it in regard to a trust, which was prevented by the adverse possession of Alary Gordon. So, the deed of Wellborn operated by way of estoppel, and afterwards, in 1814, when the term of five hundred years was assigned to Mrs. Wellborn, it passed to him,jure mariii, and then passed to the commissioners, or those claiming under them, ‘ to feed the estoppel,’ in the quaint language of the books, and the legal effect was to vest the title in the commissioners, or those claiming under them, in the same way as if he had been the owner of the term when he executed the deed.” — Doe ex dem. v. Oliver, 5 M. & R. 202; Smith’s Leading Cases, 417, in margin ; Van Rensselaer v. Kearney, 11 How. U. S. 297; Rawle on Cov. 405; 1 Bish. Mar. Women, § 596; Bigelow on Estoppel, 322; Brown v. Spann, 2 Mill. Const. Rep. 12; Curtis v. Follet, 15 Barb. 337; Gill v. Fauntleroy, 8 B. Mon. 177, 186; Wildy v. Doe ex dem., 26 Miss. 35; Beal v. Harmon, 38 Mo. 435.
Samuel E. Chapman executed the note and mortgage conjointly with his wife, and we hold that his life estate passed by the covenants in his mortgage; and that, to that extent, the complainant is entitled to relief according to the averments of the bill. The demurrer of Mrs. Chapman’s administrator, and of her children, should have been sustained. [116] The demurrer of Samuel E. Chapman should have been overruled. Let the costs of this appeal be paid equally by appellant, Samuel E. Chapman and his sureties, and by Mrs. Abrahams.