Blakeslee v. Mobile Life Insurance

BRICKELL, C. J.

This bill was filed by the appellee to foreclose a mortgage on real estate executed by the appellant on the 11th day of October, 1871. The facts as disclosed by the record, are that on the 20th day of March, 1858, the appellant, George Blakeslee, being seized of the premises, by deed conveyed them with certain slaves, to Edward S. Largan, in trust for the sole use and benefit of his wife, Mary G. Blakeslee, during the term of her natural life, and after her death, said property, both land and slaves, to be equally divided between the children of my wife and myself. But in the event that my said wife should think it to her and her children’s interest to sell all or any part of said property, then she shall have full power to do so, and the said E. 8. Dargan, trustee as aforesaid, shall join her in the deed so as to give the purchaser a good title, either to the slaves or land that may be sold, and her and her acts shall bind me and my heirs, and vest in the purchaser a good title. The mortgage is made to secure payment of the debt of the husband, and in its execution, Mrs. Blakeslee, and her only children, Gertrude J. and Roger S., with the trustee, Largan, joined the husband. At its execution, Roger S. was an infant, and has since died, leaving his sister Gertrude his only heir.

The only questions which have been argued before us, are, first, whether the power to sell, vested in Mrs. Blakeslee by the deed of trust, includes the power to mortgage; and, ■secondly, whether the personal representative of Roger S. is not an indispensable party to the bill. We do not find it necessary or proper to pass on the first question.

In a court of equity, a gift or conveyance to a married woman, or to a trustee for her use, which excluded the marital rights of the husband, created in her a separate estate, independent of statutory provisions. To the creation <of this estate no particular language or form of words was essential. It was sufficient that the intent, that marital rights of the husband should not attach, was clear and unequivocal. Gifts for the sole and separate use, or for the sole use of the wife, were appropriately framed to create the estate. The statutes creating and defining the wife’s separate estate, and limiting the marital rights of the husband, do not’ abrogate or supersede the equitable separate estate. The office of v-these statutes is to affect estates which, without them, would *208 have been subjected to the common law marital rights of the-husband. — 2 Brick. Dig. 91, § 272; Short v. Battle, 52 Ala.

The life estate of Mrs. Blakeslee was her equitable, not her statutory, separate estate. Of this estate she had the power of disposition of a femme-sole. She could sell or mortgage it as a security for the payment of her husband’s debts. Demorest v. Wynkoop, 3 Johns. Ch. 129. The power to sell, with which she was clothed by the trust-deed, was a power to sell the entire estate — the life estate and the remainder. Admitting this power does not include a power to mortgage-which we do not decide, the mortgage operates a conveyance-of her life' estate. It passes because her power to alienate is an incident of the estate, and is not restrained by the deed creating it.—2 Wash. Real Prop. 618.

The sufficiency of the mortgage to pass the interest in the remainder of the daughter Gertrude, cannot be doubted.. It distinctly appears on the face of the mortgage, from its-terms, and the covenants implied by law from these terms, that it was the intention of the grantors to convey, and of the grantee to acquire an indefeasible fee, subject to divestiture, on the performance of the condition expressed. Whatever of interest resides in the grantors passed. —Stewart v. Anderson, 10 Ala. 504 ; Bean v. Welch, 17 Ala. 770 .

Admitting the invalidity of the mortgage as to Eoger S., because of his infancy ; on his death his estate descended to-his sister Gertrude. The operative words of the mortgage, “grant, bargain, sell,” under the statute (E. C. § 1584), imply a covenant, which estop her from asserting the title acquired by descent from him against the mortgage. —Stewart v. Anderson, supra; Van Renssalaer v. Keany, 11 How. 297 ; Clark v. Barker, 14 Cal. 612 ; Bigelow on Estoppel, 322.

The personal representative of Eoger S. was not a necessary, if a proper, party to the bill. No decree was sought,, or could be rendered affecting his rights. The decree as to all others than George Blakeslee, in no event, could operate-otherwise than on the land. The parties having the estate in the land were before the court. —Tindal v. Drake, June term, 1874, manuscript.

The decree of the chancellor is affirmed.