Powell v. New England Mortgage & Security Co.

87 Ala. 602

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

Opinion

STONE, C. J.

The question in this case is, whether certain proceedings had before the chancellor so far relieve Mrs. Powell of the disabilities of coverture, as to make the mortgage executed by her a binding lien on the land therein described. A transcript of those proceedings is made an ex-Mbit to the bill. An attempt bad. been made, under section 2731 of tbe Code of 1876, to have Mrs. Powell relieved of ber disabilities of coverture, as to ber statutory and other separate estates, so far as to invest ber with the right “to buy, sell, bold, convey, and mortgage real and personal property, and to sue and be sued as a feme sole.” Tbe petition was addressed to tbe chancellor in vacation, and was acted upon by him in vacation.

This statute has been several times before us for interpretation. Our uniform ruling has been, that it is enabling, and that to obtain tbe benefits it offers, tbe whole, and not a part of tbe relief it tenders, must be set forth, and embodied in tbe prayer; in other words, that no fractional relief, less than the whole, can be obtained under this statute. Tbe chancellor has no power to grant any relief, unless all tbe statute provides is asked for, and be can confer no greater or other powers than those enumerated in tbe statute. Asking to be relieved of only a part of tbe enumerated disabilities, falls short of putting the jurisdiction and powers of tbe chancellor into exercise; and any decree be may render on such petition is a nullity.—Ashford v. Watkins, 70 Ala. 156; Cohen v. Wollner, 72 Ala. 233; Falk v. Hecht, 75 Ala. 293. So, in Meyer v. Sulzbacher, 76 Ala. 120, 127, we said: “That tbe powers authorized by tbe statute to be conferred must all be conferred, or withheld together, as an entirety, and that this jurisdiction can not be exercised by piecemeal.” If, however, tbe relief granted be greater than tbe statute allows, but yet both pleadings and decree cover tbe whole field of permissible relief, such decree will be void only for tbe excess.—Meyer v. Sulzbacher, supra; Mohr v. Senior, 85 Ala. 114.

Tbe petition, under which Mrs. Powell obtained ber relief, is fatally defective. It simply avers that she owns lands, ber statutory separate estate, “which she desires to incumber, or mortgage, for tbe purpose of raising money.” Tbe prayer is, “that your Honor will relieve ber of all the disabilities of coverture, to tbe end that she may sue and be sued as a feme sole, mortgage, convey, and otherwise dispose of ber separate estate, as fully and freely as if she were a feme sole.” It will be seen that several of tbe provisions of tbe statute are ignored. Tbe decree is fuller; but, to tbe extent it goes beyond tbe petition and its prayer, it is coram non judice. But, it is itself defective.

Reversed, and demurrer sustained. Remanded, with instructions to the chancellor to dismiss the bill, unless, perchance, the defects pointed out above can be cured by amendment.

Reversed and remanded.