CLOPTON, J.
It is conceded, that the common law does not incapacitate a married woman from being a trustee, either express or iñ invitum ; nor is she disqualified to exercise judgment and discretion in discharge of the office, and in execution of any power devolved on her as such trustee, without the cooperation of her husband. While acting under a power, and within the scope of her authority, she may make a conveyance to her hnsband, as well as to a third person, which will be sustained in a court of equity.— Gridley v. Wynant, 23 How. 500; 2 Cord on Mar. Women, § 1396. On a former appeal, which was taken from a decree overruling a demurrer to the bill (66 Ala. 62), it was held,, that where the purchase-money of land was paid with a mixed fund, partly the property of the husband, and partly the property of the wife, and the title taken in the name of the wife, a resulting trust may, in such case, be established in favor of the husband, for the part paid by him. It was further held, that on the allegations of the bill, which were admitted to be true by the demurrer, the mutual deeds, executed by the husband and wife, were designed to separate the relative interests of the parties ; that Mrs. Harden must be regarded as conveying in her capacity as trustee, and that the deeds “ should be sustained, so far as the partition clearly appears to be fair and just.” It was also said : “ In view of the relation of the parties, and the influence which the husband exerts thereby over the conduct of the wife, all transactions of this, and in fact of every character between them, will be scanned -with a watchful and jealous eye by courts of equity.”
The case now comes before ns on appeal from the decree on the pleadings and proof; and the investigation must be addressed to a consideration of the deed of partition, and its recitals, in connection with, and in the light of the circumstances attending the purchases of the lands and the payment of the purchase-money, in order to ascertain whether the partition appears to be fair and just, when subjected to a close and vigilant scrutiny ; in other words, whether Mrs. Harden has voluntarily done what she would have been compelled involuntarily to do. The deed of partition can not be sustained, unless, on the facts proved, it satisfactorily appears that she executed it in her capacity of trustee, either because of a resulting trust in his favor, or because, as alleged in the bill, and recited in the deed, she took and held the legal title for the purpose of [481]*481securing to her the money belonging to her separate estate, which was invested in the lands.
If, by the legal effect and operation of the transactions, the lands, or a material, valuable, and tangible interest in each parcel, vested in Mrs. Harden ; in such case, the common-law rule applies, which prohibits all contracts between husband and wife, and avoids any conveyance of her property to him directly. The rule rests on the unity of person, and on the presumption that the wife is under the control or coercion of the husband, and thereby deprived of freedom of action. While a court of equity will uphold, for the benefit of a married woman, many acts invalid at law, her acts, void at law for her protection, will' not be sustained in equity, against her interests. Rumfelt v. Clemens, 46 Penn. St. 455 ; White v. Wager, 25 N. Y. 328 ; Preston v. Fryer, 38 Md. 221. Neither is her capacity, in this respect, enlarged by our statutes, which, in express terms, prohibit any contract between husband and wife for the sale of any property, and prescribe a particular mode for the sale and conveyance of her statutory separate estate— by an instrument in writing executed by both husband and wife, and attested by two witnesses, or properly acknowledged. The husband can not join in a conveyance to himself. — Kinnamore v. Pyle, 44 Ind. 275.
No question of estoppel is raised by the argument of counsel for appellees, and properly not. The case is clear of such complication. It has been uniformly held, that a married woman is not estopped from asserting the invalidity of a conveyance of her property, not executed in the mode required by the statute, though slie has received a valuable consideration, and her vendee has been let into possession; and that a court of equity will not enforce it against her, as an agreement to convey ; and also that the court will intervene, in the absence of fraud, duress, or imprisonment, to annul and cancel a conveyance of her statutory separate estate, by mortgage or absolute deed, in consideration of the debt of her husband. — Blythe v. Dargin, 68 Ala. 370 ; Boyleston v. Farrior, 64 Ala. 564. It may be, that she wmuld be estopped from denying the validity of an act done under a power, and within the scope of her authority as trustee ; but the precedent inquiry remains, did she perform the act in the capacity of trustee ?
The purchases of the two parcels of lands were separate, distinct, and independent transactions; the “Nance land” having been purchased in December, 1867, for $2,820.00, one-third cash, and the balance in one and two years ; and the “Wilburn land ” having been purchased in January', 1869, for $1,600.00, paid at the time. For the deferred payments on the Nance lands, Mrs. Harden executed her bonds, with her husband and [482]*482brother as sureties. There was no connection, directly or indirectly, between the purchases. A married woman has capacity, with the consent of her husband, .to acquire lands by purchase ; and her husband, as her trustee, may, with her concurrence, invest money, the corpus of her statutory separate estate, in the purchase of lands. Lands acquired by either mode are, by operation of law, the statutory separate estate of the wife. Marks v. Cowles, 53 Ala. 499 ; Rainey v. Rainey, 35 Ala. 282; Sharp v. Sharp, 76 Ala. 312. The deeds to the lands were made to, and in the name of Mrs. Harden. By the purchases, and the execution of the conveyances, the lands were, prima facie, her separate estate, and were absolutely so to the extent moneys of her separate estate were invested in the purchases. The rights and capacities of the parties are not governed by precisely the same principles, as if there had been a single purchase, or contemporaneous purchases of all the lands, the consideration-money contributed partly by each. If it be conceded that a part of the purchase-money of each parcel of land was paid by the husband, and there is a resulting trust in his favor; the trust is not single and common to both parcels, but separate trusts, charged severally on each parcel, for the amount of his money invested in the purchase of the particular parcel. If such were the facts, the deed of partition is not only an attempted execution of the trusts, but also an exchange of lands, and void to the extent it was an exchange; though equity may sustain such transaction, when shown to be equitable and for the benefit of the wife.
The consideration received by Mrs. Harden, for her release, surrender, and conveyance of the “Nance lands” to her husband, was, as recited in the deed between them, his release, surrender, and conveyance to her of all his right, title, claim, and interest in the “ Wilburn land,” by reason of his having paid one thousand dollars of the purchase-money. The evidence of the witnesses, Wilburn, L>. H. Turner, H. P. Turner, and Humphrey, irresistibly forces the conclusion, that the entire purchase-money of the “Wilburn land” was paid with the proceeds of a note due to Mrs. Harden by her brothers, which was her statutory separate estate.
Free access — add to your briefcase to read the full text and ask questions with AI
CLOPTON, J.
It is conceded, that the common law does not incapacitate a married woman from being a trustee, either express or iñ invitum ; nor is she disqualified to exercise judgment and discretion in discharge of the office, and in execution of any power devolved on her as such trustee, without the cooperation of her husband. While acting under a power, and within the scope of her authority, she may make a conveyance to her hnsband, as well as to a third person, which will be sustained in a court of equity.— Gridley v. Wynant, 23 How. 500; 2 Cord on Mar. Women, § 1396. On a former appeal, which was taken from a decree overruling a demurrer to the bill (66 Ala. 62), it was held,, that where the purchase-money of land was paid with a mixed fund, partly the property of the husband, and partly the property of the wife, and the title taken in the name of the wife, a resulting trust may, in such case, be established in favor of the husband, for the part paid by him. It was further held, that on the allegations of the bill, which were admitted to be true by the demurrer, the mutual deeds, executed by the husband and wife, were designed to separate the relative interests of the parties ; that Mrs. Harden must be regarded as conveying in her capacity as trustee, and that the deeds “ should be sustained, so far as the partition clearly appears to be fair and just.” It was also said : “ In view of the relation of the parties, and the influence which the husband exerts thereby over the conduct of the wife, all transactions of this, and in fact of every character between them, will be scanned -with a watchful and jealous eye by courts of equity.”
The case now comes before ns on appeal from the decree on the pleadings and proof; and the investigation must be addressed to a consideration of the deed of partition, and its recitals, in connection with, and in the light of the circumstances attending the purchases of the lands and the payment of the purchase-money, in order to ascertain whether the partition appears to be fair and just, when subjected to a close and vigilant scrutiny ; in other words, whether Mrs. Harden has voluntarily done what she would have been compelled involuntarily to do. The deed of partition can not be sustained, unless, on the facts proved, it satisfactorily appears that she executed it in her capacity of trustee, either because of a resulting trust in his favor, or because, as alleged in the bill, and recited in the deed, she took and held the legal title for the purpose of [481]*481securing to her the money belonging to her separate estate, which was invested in the lands.
If, by the legal effect and operation of the transactions, the lands, or a material, valuable, and tangible interest in each parcel, vested in Mrs. Harden ; in such case, the common-law rule applies, which prohibits all contracts between husband and wife, and avoids any conveyance of her property to him directly. The rule rests on the unity of person, and on the presumption that the wife is under the control or coercion of the husband, and thereby deprived of freedom of action. While a court of equity will uphold, for the benefit of a married woman, many acts invalid at law, her acts, void at law for her protection, will' not be sustained in equity, against her interests. Rumfelt v. Clemens, 46 Penn. St. 455 ; White v. Wager, 25 N. Y. 328 ; Preston v. Fryer, 38 Md. 221. Neither is her capacity, in this respect, enlarged by our statutes, which, in express terms, prohibit any contract between husband and wife for the sale of any property, and prescribe a particular mode for the sale and conveyance of her statutory separate estate— by an instrument in writing executed by both husband and wife, and attested by two witnesses, or properly acknowledged. The husband can not join in a conveyance to himself. — Kinnamore v. Pyle, 44 Ind. 275.
No question of estoppel is raised by the argument of counsel for appellees, and properly not. The case is clear of such complication. It has been uniformly held, that a married woman is not estopped from asserting the invalidity of a conveyance of her property, not executed in the mode required by the statute, though slie has received a valuable consideration, and her vendee has been let into possession; and that a court of equity will not enforce it against her, as an agreement to convey ; and also that the court will intervene, in the absence of fraud, duress, or imprisonment, to annul and cancel a conveyance of her statutory separate estate, by mortgage or absolute deed, in consideration of the debt of her husband. — Blythe v. Dargin, 68 Ala. 370 ; Boyleston v. Farrior, 64 Ala. 564. It may be, that she wmuld be estopped from denying the validity of an act done under a power, and within the scope of her authority as trustee ; but the precedent inquiry remains, did she perform the act in the capacity of trustee ?
The purchases of the two parcels of lands were separate, distinct, and independent transactions; the “Nance land” having been purchased in December, 1867, for $2,820.00, one-third cash, and the balance in one and two years ; and the “Wilburn land ” having been purchased in January', 1869, for $1,600.00, paid at the time. For the deferred payments on the Nance lands, Mrs. Harden executed her bonds, with her husband and [482]*482brother as sureties. There was no connection, directly or indirectly, between the purchases. A married woman has capacity, with the consent of her husband, .to acquire lands by purchase ; and her husband, as her trustee, may, with her concurrence, invest money, the corpus of her statutory separate estate, in the purchase of lands. Lands acquired by either mode are, by operation of law, the statutory separate estate of the wife. Marks v. Cowles, 53 Ala. 499 ; Rainey v. Rainey, 35 Ala. 282; Sharp v. Sharp, 76 Ala. 312. The deeds to the lands were made to, and in the name of Mrs. Harden. By the purchases, and the execution of the conveyances, the lands were, prima facie, her separate estate, and were absolutely so to the extent moneys of her separate estate were invested in the purchases. The rights and capacities of the parties are not governed by precisely the same principles, as if there had been a single purchase, or contemporaneous purchases of all the lands, the consideration-money contributed partly by each. If it be conceded that a part of the purchase-money of each parcel of land was paid by the husband, and there is a resulting trust in his favor; the trust is not single and common to both parcels, but separate trusts, charged severally on each parcel, for the amount of his money invested in the purchase of the particular parcel. If such were the facts, the deed of partition is not only an attempted execution of the trusts, but also an exchange of lands, and void to the extent it was an exchange; though equity may sustain such transaction, when shown to be equitable and for the benefit of the wife.
The consideration received by Mrs. Harden, for her release, surrender, and conveyance of the “Nance lands” to her husband, was, as recited in the deed between them, his release, surrender, and conveyance to her of all his right, title, claim, and interest in the “ Wilburn land,” by reason of his having paid one thousand dollars of the purchase-money. The evidence of the witnesses, Wilburn, L>. H. Turner, H. P. Turner, and Humphrey, irresistibly forces the conclusion, that the entire purchase-money of the “Wilburn land” was paid with the proceeds of a note due to Mrs. Harden by her brothers, which was her statutory separate estate. The claim of her husband, that he paid a part of the purchase-money, is not colorable — is a mere pretence to give the appearance of equality in the partition. He had no claim or interest in the “ Wilburn land,” other than as husband and trustee. There was no resulting trust in his favor, and the fairness and justness of the partition is thus shown to be baseless.
The only opposing evidence is the recitals of the deed. These recitals, however conclusive they may be between parties sui juris, are not conclusive on Mrs. Harden, or her heirs, be[483]*483canse of her legal incapacity, and the presumed subordination of her will to that of her husband. — Glidden v. Strupler, 52 Penn. St. 400; Drake v. Glover. 30 Ala. 382. They are recitals of the considerations moving the parties, not contractual, and may be considered in the nature of admissions sufficient to make a prima faeie case. If solemnly, deliberately, and freely made, they are entitled to great weight; but, if their force is impaired by reason of the manner in which they were procured, they should be accorded corresponding consideration. The evidence shows that Mrs. Harden was an invalid for several years.preceding her death, and during a large portion of the time was confined to her bed ; that he was persistent in his efforts to get her to convey to him the “Nance land,” threatening at times to take their son, and leave her in her afflicted condition, if she did not arrange it so he. could raise money; and practiced other annoyances. His mother, who lived in the house with them, and whose natural instinct is to cover the misdeeds of her son as far as consistent with truth, testifies that she supposed Mr. Harden persuaded his wife to sign the deed — does not think she signed ,it willingly, and, while he did not deal harshly with her, he may have worried her into doing so.
As appropriate we quote the remarks of Agnbw, J., in Rumfelt v. Clemens, supra: “What assurance have we, in this, or in any case, that the agreement' was not procured from her by threats, cruel treatment, or a course of petty annoyances amounting to an absolute constraint ? The policy of the law, in this respect, is founded in a deep insight of the marriage relation, exposing the timid, shrinking wife to the storm of passion, the torturing reproach, or the heart-breaking unkindness of the husband.” This was said in the absence of evidence. Here, there is evidence showing, perhaps not the “ storm of passion,” or the “ torturing reproach,” but “ a course of petty annoyances amounting to an absolute constraint,” and the unldndness of the husband to an afflicted wife, whose power of resistance was, probably, nearly exhausted by the wasting of disease. Admissions, obtained under such circumstances, can not overcome the clear, explicit, and positive statements of several unimpeached witnesses.
In respect to the payment of the purchase-money of the “ Nance land,” the evidence is not so clear, explicit, and satisfactory. It tends to show, affirmatively, that Mrs. Harden paid a large portion, — more than the sum recited in the deed of partition ; but we are without reliable or specific information by whom, or how the balance was paid. It is not shown that the separate estate of Mrs. Harden was sufficient to make the entire payment, without the use of the railroad stock, and [484]*484there is no evidence that this was ever sold, or so appropriated. The evidence tends strongly to show that Mr. Harden was without means to make the payments. In such case, and under such circumstances, the wise and salutary presumptions of law, sanctioned by the experience of ages, must prevail. In 2 Bishop on Mar. Women, § 140, the author very properly observes: “As no man, in the complication of business affairs, could prove affirmatively what was the consideration which entered into the acquisition of every piece of property, and show it to be disconnected from every thing proceeding from his wife ; so, in like manner, can no married woman, holding property, and managing it on her own account, trace affirmatively her separate ownership in the consideration paid for every thing she may justly claim as her own; and it would seem that, in substance, the same rules of evidence which protect the husband should be made available for the wife.”
The purchase of the lands was in the name of the wife; she was reported by’ the administrator as the purchaser; the sale was confirmed as made to her ; the receipt for the purchase-money was givan as paid by her; on the payment of the purchase-money, the order of the court was made for a conveyance to her, and a conveyance was accordingly so made.' These facts, in the absence of opposing evidence, are sufficient to show that the purchase was made, and the purchase-money paid by the wife. — Saunders v. Garrett, 33 Ala. 454; Bodgett v. Ebbing, 24 Miss. 245; Morrison v. Koch, 32 Wis. 254. These proceedings were in progress from December, 1867, the time of the sale, to January, 1870, when the conveyance was executed ; and during this period, there is no claim or pretense by the husband that he had paid any portion of the purchase-money, or had any interest in the land; but, on the contrary, we have his admissions to the administrator, that the payments were made with moneys of Mrs. Harden’s. No evidence was offered by the complainants that the husband paid any part of the purchase-money, other than the admissions of the deed of partition, the force of which we have considered. We attach no importance to the will. The “Wilburn land” is devised to her children, and also her entire interest in cmy other real estate she then possessed, or might thereafter belong to her estate. There was no other real estate, except the “Nance land,” in which she could at that time claim an interest ; and if the will proves anything, it tends to prove that she then claimed, or thought she had an interest therein.
The mortgagees can not claim the protection awarded to innocent purchasers. They knew that Mrs. Harden was a married woman. The records of the Probate Court and of the conveyances, and the deed of partition — links in their chain of [485]*485title — which it was their duty to examine, were sufficient to put them on inquiry; and the pursuit of the inquiry with reasonable diligence would have brought to them knowledge of facts, showing the fallacy of the recitals in the deed of partition, the unfairness and injustice of the deed of partition, and the incapacity of Mrs. Harden to execute the deed to her husband.
The bill is filed for the single purpose of foreclosing the mortgages on “ the Nance land.” There are no allegations of fraud in the purchase, or in the conveyance to Mrs. Harden. The title of complainants to relief is based on the validity of the deed to her husband. If it be conceded that the evidence is insufficient to show that all of the purchase-money was paid with moneys, the separate property of Mrs. Harden, and that apart was paid by the husband with his individual funds, the presumption is that it was an advancement; and an equity in the land was, by the purchase, vested in the wife, which, in the absence of fraud, became perfect on the payment of the purchase-money, and was, by the execution of the conveyance, converted into a legal estate. The legal estate “ was irrevocable and indestructible, by any act of the husband subsequent to its creation.” Had the husband by any means become vested with the legal estate, he would have been a trustee for the wife.— Wimbish v. B. &. L. Asso., 69 Ala. 580.
The decree is reversed, and a decree will be here rendered denying the complainants relief, and setting aside and cancel-ling the. deed of partition executed by Benjamin L. Harden and Anne T. Harden, December 7, 1872. The appellees will pay the costs of appeal in this court and the Chancery Court, and the costs of suit in the Chancery Court,