BBICKELL, C. J.
— Notwithstanding the able argument of the counsel for Mrs. Kelly, we are constrained to adhere to the conclusion expressed when this cause was before the court at a former term. The pleadings and the evidence do not authorize a reformation of the conveyance under which she holds the premises sought to be charged with debts contracted by her, as it must be presumed, on the faith and credit of her equitable [518]*518separate estate. — Turner v. Kelly, 10 Ala. 85. There can be, in view of the evidence, no denial that the conveyance is precisely such as was designed by the parties; nor can it be contended that there was an agreement it should be of a different nature and character. There is no term introduced, which they did not intend, at the time of its execution, should be introduced ; nor is there the omission of any term it was intended to introduce, nor, in any respect, any inapt expression of their purposes or agreement. All that can be said is, that in view of subsequent events, if the legal incidents of the estate created had been fully apprehended, a species of conveyance would have been adopted relieving the estate from the liability now attaching to it. If it were more certain that the parties did not apprehend the legal 'incidents of the estate, a court of equity could not intervene for the reformation of the conveyance : the mistake would be of law, and not of fact. When a written instrument is, in its terms, clear and unambiguous, as is this conveyance, in the absence of fraud, or of mistake of fact, a court of equity can not take jurisdiction to reform it, because the parties, or either of them, may not have apprehended its legal effect. As was said by G-oldti-iwaite, J., in Larkins v. Biddle, 21 Ala. 256, “there is, in such a case, nothing for a court of equity to lay hold of. The parties have made their own contract, and a court of equity can not change it.”
2. It is true that there was a line of decisions, of then recent origin, prevailing when this conveyance was executed, and the contracts sought to be enforced were entered into, which would have led to the conclusion, that though the conveyance, by appropriate words, and the words for that purpose generally employed, created an equitable separate estate, that was not its' character in contemplation of law; that it was a statutory separate estate, and the capacity of Mrs. Kelly to contract, or to bind it, was not dependent upon the terms of the conveyance, but upon the statute defining and regulating the separate estates of married women. ’ These decisions were not only in direct antagonism to a series of former decisions which had been acted upon by the profession, and accepted by the community as a correct and conclusive exposition of the law, touching a question of vital importance, but they were anomalous. In all the States in which the common law in reference to the property of married women has been abrogated, either by constitutional or by statutory provisions, and the wife clothed with capacity to hold property owned by her at the time of marriage, or which after marriage she becomes entitled to, so far as we have discovered, the constitutional or statutory provision has not been construed as subverting, or as affecting equitable separate [519]*519estates, — the creation of the donors'of property, and not the creation of the law. They arise from the terms of a gift, or a devise, deed, or other instrument, into which the donor may introduce such uses, trusts, or limitations, as are deemed by him most expedient to effectuate his purposes. — "Wells’ Separate Property of .Married Women, § 71. The estate created by the statute is strictly a legal estate, for 'the recovery of which the wife must sue at law, and in her own name, unless, in the particular case, there be some eireumstances rendering legal remedies inadequate, or peculiarly of equitable cognizance. It has the incidents, qualities and properties, and no other, attached to it by the law of its creation. Therefore, the original decisions of this court, remaining of unquestioned authority until the line of decisions to which we have referred was made, had affirmed that the statute had reference only to the estates of its creation, estates made separate by operation .of law, and did not refer to, or operate upon estates the donors of property created, in the contemplation of a court of equity deemed separate, and which would have been so taken and esteemed if the statute had not been enacted.— Gerald v. McKenzie, 27 Ala. 166; Friend v. Oliver, Ib. 532; Willis v. Cadenhead, 28 Ala. 472; Hardy v. Boaz, 29 Ala. 168; Pickens v. Oliver, Ib. 528; Smith v. Smith, 30 Ala. 642; Cannon v. Turner, 32 Ala. 483; Huckabee v. Andrews, 34 Ala. 646. The doctrine and the authority of these cases have been fully restored, and the line of decisions to which reference has been made deliberately overruled. — Short v. Battle, 52 Ala. 456; McMillan v. Peacock, 57 Ala. 127; Hooks v. Brown, 62 Ala. 258; Grimball v. Patton, 70 Ala. 627; Turner v. Kelly, Ib. 85.
The correctness of the later decisions, and of the former decisions which they follow, is not questioned; but it is insisted, as the doctrine announced by them was not prevailing when the conveyance was executed and the contracts were made, the validity of each ought not to be determined by them, but by the decisions then regarded as authoritative, which, it must be presumed, were in the contemplation of the parties. This proposition is wholly irreconcilable with the theory, that by mistake of fact any term or limitation was introduced into the conveyance the parties did not intend introducing. It assumes that the conveyance' conforms to the intention of the parties, and was purposely made in view of judicial decisions supposed to support it, as creating a statutory, and not.an equitable estate. If the fact were apparent — if it were not mere matter of presumption — that the conveyance and contracts were made in view of these decisions, all that can be said is, the parties were under a mistake as to the law. They knew the decisions were conflicting; they exercised their own judg- [520]*520■ ment as to the effect and consequences of the conflict; and if they have been mistaken, the mistake is of law. Agreements made and acts done under a mistake of law, in the absencé of fraud, misrepresentation, or an abuse of confidence, superinducing the mistake, are generally held valid and obligatory. The rules arid principles of law are regarded as certain, though they may not have been the subject of immediate adjudication, or though there may be in reference to them conflicting adjudications. In Lyon v. Richmond, 2 John. Ch. 60, Ch. Kent said: “ The courts do not undertake to relieve parties from their acts and deeds fairly done, though under a mistake of law. Every man is to be charged at his peril with a knowledge of the law. There is no other principle which is safe and practicable in the common intercourse of mankind. And to suffer a subsequent judicial decision, in any one given case, on a point of law, to open and annul every thing that has been done in other cases of the like kind, for years before, under a different understanding of the law, would lead to the most mischievous consequences.” The same principle was announced in Hardigree v. Mitchum, 51 Ala. 151, in which relief from acts done and acts induced was claimed, because into them the party had been led by the theory of a judicial decision which was subsequently overruled.
Free access — add to your briefcase to read the full text and ask questions with AI
BBICKELL, C. J.
— Notwithstanding the able argument of the counsel for Mrs. Kelly, we are constrained to adhere to the conclusion expressed when this cause was before the court at a former term. The pleadings and the evidence do not authorize a reformation of the conveyance under which she holds the premises sought to be charged with debts contracted by her, as it must be presumed, on the faith and credit of her equitable [518]*518separate estate. — Turner v. Kelly, 10 Ala. 85. There can be, in view of the evidence, no denial that the conveyance is precisely such as was designed by the parties; nor can it be contended that there was an agreement it should be of a different nature and character. There is no term introduced, which they did not intend, at the time of its execution, should be introduced ; nor is there the omission of any term it was intended to introduce, nor, in any respect, any inapt expression of their purposes or agreement. All that can be said is, that in view of subsequent events, if the legal incidents of the estate created had been fully apprehended, a species of conveyance would have been adopted relieving the estate from the liability now attaching to it. If it were more certain that the parties did not apprehend the legal 'incidents of the estate, a court of equity could not intervene for the reformation of the conveyance : the mistake would be of law, and not of fact. When a written instrument is, in its terms, clear and unambiguous, as is this conveyance, in the absence of fraud, or of mistake of fact, a court of equity can not take jurisdiction to reform it, because the parties, or either of them, may not have apprehended its legal effect. As was said by G-oldti-iwaite, J., in Larkins v. Biddle, 21 Ala. 256, “there is, in such a case, nothing for a court of equity to lay hold of. The parties have made their own contract, and a court of equity can not change it.”
2. It is true that there was a line of decisions, of then recent origin, prevailing when this conveyance was executed, and the contracts sought to be enforced were entered into, which would have led to the conclusion, that though the conveyance, by appropriate words, and the words for that purpose generally employed, created an equitable separate estate, that was not its' character in contemplation of law; that it was a statutory separate estate, and the capacity of Mrs. Kelly to contract, or to bind it, was not dependent upon the terms of the conveyance, but upon the statute defining and regulating the separate estates of married women. ’ These decisions were not only in direct antagonism to a series of former decisions which had been acted upon by the profession, and accepted by the community as a correct and conclusive exposition of the law, touching a question of vital importance, but they were anomalous. In all the States in which the common law in reference to the property of married women has been abrogated, either by constitutional or by statutory provisions, and the wife clothed with capacity to hold property owned by her at the time of marriage, or which after marriage she becomes entitled to, so far as we have discovered, the constitutional or statutory provision has not been construed as subverting, or as affecting equitable separate [519]*519estates, — the creation of the donors'of property, and not the creation of the law. They arise from the terms of a gift, or a devise, deed, or other instrument, into which the donor may introduce such uses, trusts, or limitations, as are deemed by him most expedient to effectuate his purposes. — "Wells’ Separate Property of .Married Women, § 71. The estate created by the statute is strictly a legal estate, for 'the recovery of which the wife must sue at law, and in her own name, unless, in the particular case, there be some eireumstances rendering legal remedies inadequate, or peculiarly of equitable cognizance. It has the incidents, qualities and properties, and no other, attached to it by the law of its creation. Therefore, the original decisions of this court, remaining of unquestioned authority until the line of decisions to which we have referred was made, had affirmed that the statute had reference only to the estates of its creation, estates made separate by operation .of law, and did not refer to, or operate upon estates the donors of property created, in the contemplation of a court of equity deemed separate, and which would have been so taken and esteemed if the statute had not been enacted.— Gerald v. McKenzie, 27 Ala. 166; Friend v. Oliver, Ib. 532; Willis v. Cadenhead, 28 Ala. 472; Hardy v. Boaz, 29 Ala. 168; Pickens v. Oliver, Ib. 528; Smith v. Smith, 30 Ala. 642; Cannon v. Turner, 32 Ala. 483; Huckabee v. Andrews, 34 Ala. 646. The doctrine and the authority of these cases have been fully restored, and the line of decisions to which reference has been made deliberately overruled. — Short v. Battle, 52 Ala. 456; McMillan v. Peacock, 57 Ala. 127; Hooks v. Brown, 62 Ala. 258; Grimball v. Patton, 70 Ala. 627; Turner v. Kelly, Ib. 85.
The correctness of the later decisions, and of the former decisions which they follow, is not questioned; but it is insisted, as the doctrine announced by them was not prevailing when the conveyance was executed and the contracts were made, the validity of each ought not to be determined by them, but by the decisions then regarded as authoritative, which, it must be presumed, were in the contemplation of the parties. This proposition is wholly irreconcilable with the theory, that by mistake of fact any term or limitation was introduced into the conveyance the parties did not intend introducing. It assumes that the conveyance' conforms to the intention of the parties, and was purposely made in view of judicial decisions supposed to support it, as creating a statutory, and not.an equitable estate. If the fact were apparent — if it were not mere matter of presumption — that the conveyance and contracts were made in view of these decisions, all that can be said is, the parties were under a mistake as to the law. They knew the decisions were conflicting; they exercised their own judg- [520]*520■ ment as to the effect and consequences of the conflict; and if they have been mistaken, the mistake is of law. Agreements made and acts done under a mistake of law, in the absencé of fraud, misrepresentation, or an abuse of confidence, superinducing the mistake, are generally held valid and obligatory. The rules arid principles of law are regarded as certain, though they may not have been the subject of immediate adjudication, or though there may be in reference to them conflicting adjudications. In Lyon v. Richmond, 2 John. Ch. 60, Ch. Kent said: “ The courts do not undertake to relieve parties from their acts and deeds fairly done, though under a mistake of law. Every man is to be charged at his peril with a knowledge of the law. There is no other principle which is safe and practicable in the common intercourse of mankind. And to suffer a subsequent judicial decision, in any one given case, on a point of law, to open and annul every thing that has been done in other cases of the like kind, for years before, under a different understanding of the law, would lead to the most mischievous consequences.” The same principle was announced in Hardigree v. Mitchum, 51 Ala. 151, in which relief from acts done and acts induced was claimed, because into them the party had been led by the theory of a judicial decision which was subsequently overruled. When titles have been acquired, or judgments rendered, or contracts performed, or transactions completed, a subsequent judicial decision, reversing or ovei’ruling decisions upon which they xnay have been founded, can not be invoked to undo or annul 'them. — Jacobs v. Moragne, 47 N. Y. 81; Kenyon v. Weltby, 20 Cal. 637; Baker v. Pool, 56 Ala. 14. The doctrine now contended fox’, in its practical application, reaches far beyond this conservative pi’inciple. Executoi’y conti’acts of defined legal operation, and of recognized validity, must be pi’onounced incapable of enforcem'ent, because .made while there wex e erx-oneous decisions denying them validity, and while there were other decisions affirming their validity. If the docti’ine were established, judicial decisions would operate like statutes, as an enactment of the law as it shall exist in the future, — not as a declaration of the law as it exists presently; judicial errors would be perpetuated, and justice disappointed. The just presumption is, the contracts having been fairly made, that the parties regarded them as valid, aixd intended their performance. The reversal of the ei’roneous decisions, the restoration of the foi’mer decisions, which had been acted upon as of unquestioned cori’ectness, simply.x’exnoves all obstacle to the legal accomplishment of the just purposes of the parties, works no injustice, and imposes no burden not volxxntax-ily assumed.
3. A married woxnan, having an equitable separate estate, [521]*521not restrained or limited by the instrument from which it is derived, is, in a court of equity, so far deemed a femme sole that she may by her contracts charge such estate to the extent she could bind herself personally if unmarried. The form or character of the contract is not material: it may be written or ■oral, under or without seal; nor is it of importance whether, in the making of the contract, or by its terms, there is, expressly or by implication, a reference to the estate as the source from which satisfaction of the contract is intended. The theory is, that in the making of the contract the parties do not intend a vain, useless thing or ceremony; and as a married woman is incapable of binding herself personally, the just presumption is, that, as she has capacity to bind her equitable separate estate, satisfaction from it was intended. — Sadler v. Houston, 4 Port. 208; Forrest v. Robinson, Ib. 44; s. c., 2 Ala. 215; Bradford v. Greenway, 17 Ala. 797; McCroan v. Pope, Ib. 612; Collins v. Rudolph, 19 Ala. 616; Collins v. Lavenberg, Ib. 682; Ozley v. Ikelheimer, 26 Ala. 332; Caldwell v. Sawyer, 30 Ala. 382; Cowles v. Morgan, 34 Ala. 535; Gunter v. Williams, 40 Ala. 561; Nunn v. Givhan, 45 Ala. 370; Brame v. McGee, 46 Ala. 170; Short v. Battle, 52 Ala. 656; Burrus v. Dawson, 66 Ala. 476; Turner v. Kelly, 70 Ala. 85. Effect is given to her engagements or contracts, not as appointments or appropriations of so much of the separate estate as may be necessary to satisfy them, but upon the principle that, in a court of equity, she has capacity to malee them, though not binding upon her personally, and as there is a want of remedy at law, and the separate estate is a trust, in the exercise of its general jurisdiction over the administration of trusts, the court will intervene, and charge them upon the estate.' — Ozley v. Ikelheimer, supra; Turner v. Kelly, supra.
In some of the authorities to which we have referred it is ..said, that the contract creates alien ; and in some, that it creates a charge upon the estate. These expressions, however general, are qualified and limited by the facts of the particular case before the court, and must not be severed from the conclusions reached. When properly read and construed, they were intended only to distinguish the contracts of a f&mm.e covert, from contracts of personal obligation, valid and operative whether there is an estate or specific property on which the court has jurisdiction-to charge them. It is mere misconstruction, against which it is scarcely possible for a court to guard, to read them as intended” to express the proposition, that the contract, of itself, confers upon the creditor any specific or vested right of property in the separate estate, or an ascertained, defined right to charge it, or that the estate is thereby incumbered to any greater extent than the property of a person [522]*522sui juris is incumbered by his general contracts, to the satisfaction of which it is his moral and legal duty to appropriate the property he presently owns, and his future acquisitions, saving such as the law may exempt. The creditor has the right, through the agency of a court of equity, to charge the separate estate with the satisfaction of the engagement or contract; the right arises by operation of law, without the tacit or express stipulation of the parties. A general creditor of a person sui juris has a kindred right, by the pursuit of legal remedies, to charge all the property of the debtor not exempt. The distinction between the two rights is, that the creditor of a married woman is limited and confined to the equitable separate estate she had when the contract was made; the creditor of one sui juris can reach all property the debtor owns, without regard to the time of its acquisition.
It is only by the pursuit of legal remedies a general creditor, or a creditor not having a conventional lien, acquires any vested or specific right in and to the property of the debtor. Until such remedies are pursued, to which the law may attach a lien or charge, the debtor has full dominion over his property, the courts can not disturb. In the exercise of the dominion, if there be no fraud, he may convert one species of property into another, or at pleasure he may alienate, and the courts will not •interfere to restrain him.— Wiggins v. Armstrong, 2 John. Ch. 144; Moran v. Dawes, Hopkins Ch. 365; Adler v. Fenton, 24 How. 407. This is equally true of a married woman having an equitable separate estate. Ownership of it, dominion over it, is not displaced or lessened because she has entered into contracts which, if not performed, a court of equity will charge upon the estate. She may sell it, or she may by exchange convert it into another species of property, without offending any right of the creditor. If the creditor would restrain her in the exercise of the right, he must pursue with diligence the remedies the law appoints.
The equities of general creditors of a living person are in all respects equal; there is no foundation upon which a distinction between them can be rested. They are entitled to like remedies; the consideration of the debts due to them is not more or less valuable and meritorious; and their rights spring from the consideration, — not from the order of time in which the debts may have been contracted. Therefore, a court of equity, in the administration of equitable assets, will generally distribute them equally and pari passu, among all the creditors, “ without any reference to the priority or dignity of the debt; for courts of equity regard all debts in conscience as equal jwre natm-ali, and equally entitled to be paid.” — 1 Story’s Equity, § 554. But, though this is the favorite policy of a [523]*523court of equity, yet, when a judicial preference has been established, by the superior legal diligence of any creditor, that preference, in the administration or the assets of a living person, the court always preserves and protects. — McDermott v. Strong, 4 John. Ch. 687; Lucas v. Atwood, 2 Stew. 378; Eaton v. Patterson, 2 Stew. & P. 11; Evans v. Welch, 63 Ala. 250. Upon this principle, a judgment creditor, having exhausted legal remedies, resorting to a court of equity to reach and subject equitable assets, or property an execution at law will not reach, acquires a preference the court preserves against the claims of creditors subsequently intervening. — McDermott v. Strong, supra; Edmeston v. Lyde, 1 Paige, 637; Henriquez v. Hone, 2 Edw. Ch. 120.
The creditor of a married woman, resorting to a court of equity to charge her equitable separate estate, must, of necessity, in the bill describe the property which it is sought to subject. Ravisies v. Stoddart, 32 Ala. 599. It is upon this property only the decree can operate; for the contract is not of personal obligation, and a decree affecting or binding personally the married woman can not be rendered. In this respect, the suit has some of the characteristics of a proceeding in rem, though in form and essential elements it is a suit inter partes. A lis pendens is created by the institution of the suit, operative against all persons coming in subsequently, by purchase or otherwise. It creates a specific lien, if successfully prosecuted to final decree; the decree taking effect, by relation, from the day of the service of summons to answer. The vigilance of the creditor first instituting' suit, and prosecuting it with diligence, entitles him to priority, of which other creditors, less vigilant, who have “loitered on the way,” have no just reason to complain. The bill of Mrs. Turner having been first filed, and duly prosecuted, entitled her to priority. A specific lien was created by the decree rendered, taking effect,' by relation, from the service of process, of which it would not be equitable to deprive her.
We find no error in the decree of the chancellor, and it must be affirmed.
Stone, J., dissenting, on the point raised on former appeal.