Gunter v. Williams

40 Ala. 561

• Court: Supreme Court of Alabama
• Decided: January 15, 1867
• Status: Published

Opinion

A. J". WALKEB, C. J.

Proof of the execution of the power of sale given by W. B. Gowen & Co. is an indispensable pre-requisite to a decree for the complainants. The chancellor, deciding that there was an entire want of such proof, dismissed the complainants’ bill. We must, at the threshold of this case, ascertain whether the chancellor rightly adjudged that the execution of such instrument was not proved.

W. B. Gowen, the complainants’ witness, was asked by the defendants in their second cross-interrogatory, “who signed the firm name to the power of sale referred to in the 7th interrogatory?” The 7th interrogatory refers to the power of sale given to tbe mortgagee, after tbe execution of tbe mortgage, authorizing him to sell under tbe mortgage. Tbe witness answers this 2d cross-interrogatory thus: “I did not see it signed, but, upon examination, I find that tbe mortgage, which includes tbe power of sale, was executed by L. B. Pope; that tbe signature W. B. Gowen & Co. is in tbe bandwriting of L. B. Pope.” If this testimony were all tbe evidence, it would at least be doubtful -whether tbe evidence satisfactorily identified tbe power of sale, and proved its execution; for there is no power of sale included in tbe mortgage, and the mortgage is not signed W. B. Gowen & Co., and the mortgage and power of sale are distinct instruments. Tbe answer to tbe first rebutting interrogatory fully solves tbe difficulty of comprehending tbe answer to tbe 2d cross-interrogatory, by showing that tbe witness denominated tbe power of sale a mortgage, and spoke of it as a mortgage including a power of sale. In it be states, that be bad seen a mortgage, purporting to have been executed by W. B. Gowen & Co., to C. G. Gunter, for tbe land in question; that be saw it in tbe city of Montgomery, on tbe day of bis examination; that it was attached to interrogatories propounded to H. W. Watson and others, and in tbe possession of D. H. Workman, tbe commissioner. It appears from tbe testimony, that tbe deposition of H. W. Watson and others was taken, two days before tbe deposition of W. B. Gowen, in tbe city of Montgomery; that D. H. Workman was tbe commissioner, who took both depositions; that tbe power of sale, purporting to be executed by W. B. Gowen & Co., was attached to tbe interrogatories to H. W. Watson and others, and that tbe mortgage was not. Prom this it is obvious, that tbe witness, in answer to tbe 2d cross-interrogatory, spoke of tbe power of sale as a mortgage, and proves tbe signature of W. B. Gowen & Co. to be in tbe bandwriting of L. B. Pope. Tbe ground, therefore, upon which tbe chancellor dismissed tbe bill, is not sustained.

1. It is insisted, on tbe part of tbe appellees, tbe defendants below, that tbe power of sale does not bind W. B. Gowen, tbe partner who did not participate in tbe execution of it, but is only obbgatory upon Pope, tbe partner who subscribed the partnership name. In commercial partnerships, a subsequent ratification by parol, of a sealed instrument executed by one partner in the partnership name, may be proved by verbal evidence, and retroacts and binds the ratifying partner from the date of the instrument. — Herbert v. Hanrick, 16 Ala. 581-589. The ratification by Gowen was very distinctly and clearly proved by Wm. A. Gunter; but the chancellor erroneously excluded the evidence, on the motion of the defendants. This evidence being admitted, and considered in connection with the evidence of W. B. Gowen, there can be no doubt that Gowen was as much bound by the power of sale, as if he had himself executed it.

2. W. B. Gowen had no interest in the suit, not being bound by any warranty or covenants; and he was, therefore, a competent witness, and not a necessary party.

3. The covenant of Williams and wife ran with the land, and suit could bé brought upon the same in the name of the assignee, holding under their grantee. — Claunch v. Allen, 12 Ala. 159. The complainant, C. G. Gunter, is such an assignee. The written instrument of G. T. Gunter transferred all right and title derived by the purchase at the mortgage sale to C. G. Gunter, and thus constituted the latter the assignee of the covenants running with the land.

4. The complainant, C. G. Gunter, yielded the possession to a paramount title; and that is sufficient to sustain an action upon the covenant of warranty, notwithstanding there may have been no ouster by action at law. — Dupuy v. Roebuck, 7 Ala. 484; Davenport v. Bartlett & Waring, 9 Ala. 179; Claunch v. Allen, 12 Ala. 159; Griffin v. Reynolds, 17 Ala. 198.

5. The principle settled in Blevins v. Buck, (26 Ala. 292,) and Plowman & McLane v. Riddle, (14 Ala. 169,) justifies the making of George T. Gunter a co-complainant with his assignee, the beneficial plaintiff, Gharles G. Gunter. — See, also, McLane & Plowman v. Riddle & Burt, 19 Ala. 180.

6. We can not assent to the proposition, that Mrs. Williams has not bound her separate estate by joining in the deed to Gowen & Co. A married woman is regarded in equity, so far as her separate estate, created by contract, is concerned, as a feme sole, and sbe may bind ber separate estate by any contract by wbicb sbe could bind berself if sole and unmarried. — Faulk v. Wolfe & Gillespie, 34 Ala. 541; Roper v. Roper, 29 Ala. 247; Booker v. Booker, 32 Ala. 473; Drake and Wife v. Glover, 30 Ala. 382. Tbe power of tbe wife to bind ber separate estate by tbe covenants of a deed is evidently asserted in tbe general principle wbicb we bave announced above; and we know of no case, or doctrine, upon wbicb such power could be excepted from tbe general rule. We must, therefore, decide that tbe separate estate of Mrs. Wilbams was bound by tbe covenants of tbe deed to W. B. Gowen & Co., and must be subjected to tbe satisfaction of tbe complainants’ damages resulting from tbe breach of those covenants.

Tbe chancellor erred in dismissing tbe complainants’ bill, and in not granting them relief.

Tbe chancellor, in an able opinion upon a demurrer to tbe bill, sustains tbe views expressed by us upon tbe merits of this case. We refer' to bis reasoning and collection of authorities in that opinion, in support of our conclusions.

Eeversed and remanded.

Btrd, J., not sitting.