Opinion
2 Div. 117.
April 14, 1938.
Appeal from Circuit Court, Dallas County; John Miller, Judge.
Keith Wilkinson, of Selma, and Murphy, Hanna, Woodall Lindbergh and Wm. H. Ellis, all of Birmingham, for appellant.
The statute prohibiting a wife's suretyship for her husband is given a liberal construction to accomplish its purpose, and no form, device, or any kind of concealment is permitted to stand in the way of the wife's release from liability for the debt disclosed to be that of her husband. Code 1923, § 8272; Noel v. Tucker, 233 Ala. 337, 171 So. 640; Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Hanchey v. Powell, 171 Ala. 597, 55 So. 97; Corinth B. T. Co. v. King, 182 Ala. 403, 62 So. 704; Staples v. City B. T. Co., 194 Ala. 687, 70 So. 115; Street v. Alexander City Bank, 203 Ala. 97, 82 So. 111; Brasher v. Bromberg, 232 Ala. 450, 168 So. 552; Ex parte Lacy, 232 Ala. 525, 168 So. 554; Corinth B. T. Co. v. Pride, 201 Ala. 683, 79 So. 255; Dacus v. Streety, 59 Ala. 183; Gibson v. Clark, 132 Ala. 370, 31 So. 472; Shook v. Southern B. L. Asso., 140 Ala. 575, 37 So. 409. Allegation that husband was indebted to mortgagee and received option to repurchase for amount of debt is sufficient averment of debt and to show the deed was mortgage for husband's debt. National City Bank v. Barret, 214 Ala. 35, 106 So. 168; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084. One having no interest to be served or protected and being entitled to no relief is not a proper party, and his misjoinder in that capacity would render a bill demurrable. Staples v. Barret, supra.
Reese Reese and Pettus Fuller, all of Selma, for appellees.
Where averments of the bill are in conflict with the exhibit and other averments of the bill itself are ambiguous, the exhibit should control. Lunsford v. Marx, 214 Ala. 37, 106 So. 336. Where the bill is susceptible of two constructions, the court will adopt the one most strongly against the pleader. Pacific M. B. I. Co. v. Strange, 223 Ala. 226, 135 So. 477; Eisenberg v. Stein, 222 Ala. 576, 133 So. 281. A married woman can make all contracts, agreements, and conveyances in regard to her separate estate, except she cannot directly or indirectly become surety for her husband. Hendon v. Hendon, 219 Ala. 159, 121 So. 534; Sample v. Guyer, 143 Ala. 613, 42 So. 106, 107. Any other debt, besides the debt of the husband secured by the wife's mortgage or contract, is still legally secured and the contract good as to such other debt or debts, and securing the husband's debt does not vitiate the balance of the contract. Ex parte Lacy, 223 Ala. 525, 168 So. 554; National City Bank v. Barret, 217 Ala. 611, 117 So. 55; Clement v. Draper, 108 Ala. 211, 19 So. 25. No consideration is necessary for a conveyance by a wife to a third party. She can give away her property like other persons who are sui juris. National City Bank v. Barret, supra. Where several grounds of demurrer are assigned and a ruling sustaining the demurrer, the ruling will be referred to the proper grounds. Birmingham Ry., L. P. Co. v. Barranco, 203 Ala. 639, 84 So. 839.
Taking the averments of the bill as true and treating amendable defects as amended, as must be done in considering the general demurrer for want of equity, the complainant by the contract of sale and purchase as evidenced by the contract of February 10, 1932, acquired from the Peoples Bank Trust Company, the vendor, the equitable title to the property, the subject matter of said contract, the vendor retaining the legal title as a security for the payment of the purchase money. Brown v. Beatty, 76 Ala. 250; Bankhead et al. v. Owen, 60 Ala. 457, 466, 467; Seeberg v. Norville et al., 204 Ala. 20, 85 So. 505.
In the transaction evidenced by the agreement between complainant, her husband, and the defendant Law Lamar, of date May 7, 1934, interpreted in the light of the averments of the bill, complainant pledged her property rights to said Lamar to secure the debts of her husband. Such a pledge by the wife for the husband's debts is void because of her incapacity to make such pledge. Code 1923, § 8272; Corinth Bank Trust Co. v. Pride, 201 Ala. 683, 79 So. 255; Bank of Mobile, N. B. A., v. Smith, 16 Ala. App. 673, 81 So. 193; Horton v. Hill, 138 Ala. 625, 36 So. 465; Street v. Alexander City Bank, 203 Ala. 97, 82 So. 111; Huntsville Bank Trust Co. v. Thompson, 212 Ala. 511, 103 So. 477.
The subsequent grantee of the bank in the conveyance of March 9, 1935, taking over the property on the strength of said pledge, merely stepped into the shoes of the bank, and the complainant, for all that appears, is entitled to redeem and recover her property, on doing equity, which she expressly offers to do in her bill.
The bill as last amended, clearly, was not subject to the objection that it was without equity, nor is it subject to the defects pointed out in the decree sustaining the demurrers, but is subject to glaring demurrable defects, which the demurrer does not point out. The bill nowhere describes the property. The only description appears in the deed from the bank to the Lamar Grocery Company, and part of that is by reference only, and the deed referred to in the other exhibits is not attached nor its contents stated. For all that appears, the deed to the grocery company covers property other than the subject matter of the contract between the complainant and the bank.
The averments of paragraph 8 of the bill as last amended, construing the averments most strongly against the pleaded, show that Mina G. Lamar advanced the money to clear the property of the debt contracted by the complainant, and if this is so, she is a necessary party defendant to the bill. Ground a interposed to the amended bill specifically takes the point. Gillespie et al. v. Gibbs et al., 147 Ala. 449, 41 So. 868.
It is well settled that a demurrer is a single entity and if one ground is good, a decree sustaining the demurrer is sound. Hammons v. Hammons, 228 Ala. 264, 153 So. 210; Patten et al. v. Swope, 204 Ala. 169, 85 So. 513.
Affirmed.
ANDERSON, C. J., and FOSTER and KNIGHT, JJ., concur.