Stacey v. Walter

125 Ala. 291

Opinion

McCLELLAN, C. J.

In Vincent v. Walker, 93 Ala. 165, it was ruled that a married woman was not estopped by the recital of a valuable consideration in a deed executed by her conveying land constituting her separate estate, to show that there was in fact no consideration for the conveyance. This conclusion was expressly rested upon the considerations that the transaction was essentially a gift by the wife to the grantee, that under the statute which then obtained a married woman could not give away her land, but could sell it only, and that the conveyance not 'being one she had competency. to malee, she could not be estopped by its recitals to show there was no consideration for it. We said in that case, after referring to and recognizing the -general rule whereby a grantor whose deed recites a valuable consideration is estopped to impeach the recital: “But this rule cannot apply to a married woman so as to prevent her showing the absence of all consideration for her deed. With respectho a married woman under such disabilities 'as rested on her under the statute of force at the time of this transaction, the rule is that only a valid deed — such deed as the statute authorized her to execute — can raise up an estoppel against her. ‘It is clear that a married woman, under disabilities, cannot be estopj)ed just as if she were mi juris, and the only way of determining in what cases she may be estopped is to ascertain, first, whether the alleged estoppel grows out.of a judgment, deed, contract or tort; and, second, whether such judgment, deed, contract, or fort is binding as such on the married woman.’ — 14 Am. & Eng. Eneyc. of Law, pp. 637, 638; Alexander v. Saulsbury, 57 Ala 375-8. The statute did not confer on Mrs. Vincent and her husband capacity to dispose of her land as was attempted in this transaction. They had power to sell it, but not to mortgage it, and not to give it ernay. The statute contemplates, and provides for, only a sale in the legal sense of the term, a transfer of if for a valuable consideration ; and in terms makes provision for the uses and ends to which the consideration received shall be devoted. The proceeds of the sale were to be invested in other property for the wife, or used in ‘such manner as is most beneficial for tbe wife.’ — Code, 1876, §§ 2707, 2709. In other words, as said by Brickell, C. J.: ‘The power conferred by the statute 'and the constitution (and it is strictly3 narrowly, enabling) is to sell, converting the thing sold into money or its equivalent, and no other power can be exercised.’ — Shulman v. Fitzpatrick, 62 Ala. 571; Peeples v. Stolla, 57 Ala. 53.” It thus clearly appears that the décision in Vincent v. Walker went entirely upon the ground that under the statute existing at the time of the transaction there involved a married woman could only sell her property, and that she' could not bind herself at all by a deed for which in point of fact there was no valuable consideration. The statute now of force and which obtained at the time of the transaction here involved is entirely different in respect of the question under consideration. It is now provided that the wife has full legal power to contract as if she were sole, except as otherwise provided by law, and that with the assent and concurrence of her husband she may alienate or mortgage her property. — Code, §§ 2526, 2528. Her competency is no longer restricted to a sale of her separate property. She may alienate it. Any conveyance of her title is, of course, an alienation. A deed for a good consideration, for love and affection, is an alienation. A deed of gift is an alienation, and binds her as fully as a conveyance on valuable consideration would. Having thus the capacity to convey her land without consideration, she binds herself by such a conveyance and by its recital of a valuable consideration, and is es-topped like any other grantor to show there was no consideration. And it follows that so far as the present bill proceeds upon the theory that the complainants are entitled to relief for the want of consideration for the deed of Mrs. Stacey and her husband to the respondents, the recital to the contrary notwithstanding, it is wholly without equity.

Por the rest, we do not find in the bill any averment of a mistake of fact conducing to the execution of the deed or any fraud in the procuration of its execution, which would justify a court of equity in decreeing its cancellation. To the contrary the averments of the bill are unmistakeably clear to the exclusion of all mistake of fact and to the conclusion that the conveyance was executed in precise accordance with the intention of all the parties; all the facts and circumstances being known to them and consciously before them at the time. And so in respect of fraud: No misrepresentation of fact is averred, but only that the respondent-grantees jiromised orally at the time the deed was executed to cancel and destroy it a year afterwards, and that they have failed to so cancel and destroy the instrument. It is not even averred that they had no intention of complying with this promise when it was made, or made it with false and fraudulent intent. The case made in this regard, therefore, is essentially one for the enforcement of a contemporaneous parol agreement or understanding to the destruction of the duly executed deed of the complainants; and no more in equity than at law can any relief be predicated upon such a state of facts.' — Ware v. Cowles, 24 Ala. 446; 2 Pom. Eq. Jur. § 854 and note.

The decree of the city court sustaining the demurrer to the bill must be affirmed.

Affirmed.