of a power makes a disposition of the subject-matter thereof in express execution of the power, as in the case under the clause now under consideration, such disposition, in the absence of anything in the context showing a contrary intention, should be restricted to an execution of the power so as not to affect the donee's individual estate. 22 Am. & Eng. Ency. L. (2d Ed.) 1115; Moore v. Humpton, 1 Whart. (Pa.) 433; Beardsley v. Hotchkiss, 96 N. Y. 212. We think the intention of the testatrix, by the fourth clause of her will, to exercise the power of appointment only, and not to dispose of any of her own absolute estate, is so apparent and clear as not to be fairly susceptible of any other interpretation. And hence, under the well-settled rule in relation to the execution of powers (see Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479; Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530, 16 L. R. A. 367; Mason v. Wheeler, 19 R. I. 21, 31 Atl. 426, 61 Am. St. Rep. 734), the interest in question did not pass to said trust company, but did pass to her husband under the residuary clause of her will. We therefore decide that said one-twelfth interest now belongs to the respondent James De Wolf Perry, by virtue of the deed of conveyance to him from Raymond H. Perry, dated September 13, 1900, hereinbefore referred to.2 2 As to the capacity of a married woman to execute a power, see Stearns v. Fraleigh, 39 Fla. 603, 23 South. 18, 39 L. R. A. 705 (1897), reported ȧnte, p. 248. See, also, Appleton's Appeal, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925 (1890), reported ante, p. 356, as to the application of the rule of perpetuities against powers. DEEDS AND THEIR REQUISITES See Jackson ex dem. Gouch v. Wood, ante, p. 527. II. Requisites of Deeds * 1. CONSIDERATION VINCENT v. WALKER. (Supreme Court of Alabama, 1891. 93 Ala. 165, 9 South. 382.) Appeal from chancery court, Madison county; Thomas Cobbs, Chancellor. Bill in equity by Louisa J. Vincent against E. T. Walker and others, to cancel a deed executed by complainant. Complainant appeals from a decree dismissing the bill. MCCLELLAN, J. On a former bill by the present appellant, complainant below, in respect of the facts and subject-matter involved now, it was held that the transaction between Louisa J. Vincent and E. T. Walker, in which the former executed a deed absolute in its terms to the latter, and took from him, in a separate writing, an undertaking to reconvey to her the land in controversy upon repayment to him of the consideration recited in the deed within a certain time, was a conditional sale, and not a mortgage, as the grantor insisted in that bill. So considered as a sale by Mrs. Vincent, the property belonging to her statutory separate estate, it was further decided that she, being joined therein by her husband, was competent to so contract in relation to and to convey the land. Vincent v. Walker, 86 Ala. 333, 5 South. 465. The time within which Mrs. Vincent had the privilege of repurchasing having elapsed, and the privilege not having been exercised, the conveyance is shorn of the defeasance which originally attached to it, and must now be considered as if it had been an absolute deed ab initio, executed with all the formalities essential to the divestiture and passing of the statutory separate estate of a married woman in land. It is so treated in the present bill, which proceeds in the name of Mrs. Vincent for its cancellation as a cloud on her title, on the ground of its invalidity by reason of facts extraneous to the paper. The infirmities laid, or attempted, in one way or another, to be laid, 1 For discussion of principles, see Burdick, Real Prop. § 281. For a form of a warranty deed, see Simons v. McLain, 51 Kan. 153, 32 Pac. 919 (1893), reported herein, ante, p. 169. As to the nature and effect of a quitclaim deed, see Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243 (1887), reported herein, ante, p. 461. 2 For discussion of principles, see Burdick, Real Prop. § 282. against the deed, are three: (1) That its execution was induced by a resort to undue influence, persuasions, etc., on the part of the grantor or beneficiaries; (2) that its consideration is tainted by an agreement in composition of a felony; (3) that it was executed without consideration. Of these the first and second grounds of attack may be summarily dismissed without further discussion than to say that the facts in respect to them are not sufficiently alleged, and could not be found. to exist on the evidence in this record, had they been adequately pleaded. The real and only points in the case, therefore, are whether the complainant may be let in to show, and has shown, that the deed is not supported by a consideration. And, first, was there any consideration? In our opinion there was not. The facts were these: One Bradley had been tax collector of the city of Huntsville. Appellee Walker, Frank B. Gurley, and another were sureties on his official bond. Gurley had indemnified his co-sureties against loss on the undertaking. Bradley made default in his payments to the city. The amount of his deficit was supposed, it seems, to be about $2,000. The sureties were notified of the defalcation, and recognized their liability. Gurley and Mrs. Vincent were brother and sister. Bradley married a daughter of Mrs. Vincent. Walker married her niece. Mrs. Vincent was not at any time or in any manner bound for Bradley's deficit. Gurley alone, by reason of his indemnification of his co-sureties, was ultimately liable for the whole of it. At his suggestion, Mrs. Bradley went to her mother,, and induced her to execute this deed for the purpose of raising $2,000 with which to pay the sum Bradley owed the city. The deed was made to Walker according to an arrangement between him and Gurley. Gurley deposited $2,000 in bank to Walker's credit. Against and for this amount Walker drew a check in favor of Mrs. Vincent, to the end that she should apply its proceeds to the payment of Bradley's deficit. To that end she at once, and in consonance with the general arrangement, indorsed and delivered the check to Bradley. He collected the money on it, and, the deficit turning out to be only $1,750, paid that sum to the city of Huntsville, and paid the balance of $250 to Frank B. Gurley. It is at once manifest from these facts, as to which there is really no conflict in the evidence, that Mrs. Vincent was not to receive, and did not in fact receive, one cent of the recited consideration for her property. It is clear that the sole purpose was to reimburse Gurley money which he alone was ultimately liable to pay, and for which she was in nowise responsible, and that even this purpose has been exceeded in Gurley's favor in such sort that he has received $2,000 worth of Mrs. Vincent's property in reimbursement to him of $1,750 expended by him in the satisfaction of his own debt. So not only has Mrs. Vincent received no consideration of benefit to her, and not only does the transaction involve no consideration of detriment to Gurley, BURD.CAS.REAL PROP.-39 but the latter has actually been paid $250 as a bonus for the liquidation of his own liability. It will not do to say that when the check was delivered to Mrs. Vincent it was payment to her, and that the disposition she made of it was a matter with which Gurley and Walker had nothing to do. There is no force in the suggestion that, if this was not a payment to her, every married woman who made a sale of her land, and received money therefor, could assert that a third person reaped the benefit of it, and upon that ground come into equity with unclean hands, and avoid her conveyance. There is no analogy between the two cases. Mrs. Vincent did not receive this money or this check to her own use. She was a mere conduit between Gurley, the debtor, and the city of Huntsville, the creditor. She could not have kept the money or made use of it. She was a trustee, nothing more or less, and as such had undertaken to indorse and deliver the check to Bradley, to be used by him in paying a debt of the real drawer of the paper; and, had she failed to so indorse and deliver, the powers of a chancery court would have been entirely adequate to have compelled the execution of the trust. The disposition which she made of the check was not a matter with which Gurley and Walker had nothing to do; but, on the contrary, it was the precise disposition she had bound herself to them to make of it. She received the check alone on the condition that it should be used in the way in which it was used; and she could not have devoted it, or the proceeds of it, to any other end. Her hands are exceedingly empty, but not "unclean." They would have been full, but by no means clean, had she diverted this money from the purposes for which alone it was paid to her. We are quite assured of the soundness of the conclusion we have announced, that this deed is wholly unsupported by any consideration either of benefit to the grantor or detriment to the grantee or beneficiaries. To cancel it would be to give to Mrs. Vincent that to which she is clearly entitled, and to take nothing from Gurley and Walker to which, in equity and good conscience, they have any claim. It is a well-established general rule that the grantor in a deed which acknowledges the receipt of a valuable consideration is estopped, as against the grantee, to say no valuable consideration was in fact received, though the character and amount of the consideration may, even between the parties to the instrument, be shown to be other than as recited. 5 Amer. & Eng. Enc. Law, pp. 436, 437; 3 Brick. Dig. p. 299, § 36 et seq.; Bank v. McDonnell, 89 Ala. 434, 8 South. 137, 9 L. R. A. 645, 18 Am. St. Rep. 137. But this rule cannot apply to a married woman so as to prevent her showing the absence of all consideration for her deed. With respect to 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 any estoppel against her. "It is clear that a married woman under disabilities can not be estopped just as if she were sui 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 tort is binding as such on the married woman." 14 Amer. & Eng. Enc. Law, pp. 637, 638; Alexander v. Saulsbury, 37 Ala. 375-378. 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 away. The statute contemplates and provides for only a "sale," in the legal sense of the term,—a transfer of it 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 the 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 strictly, 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. The transaction here not being a sale within the enabling statute cited, the recital in the deed acknowledging the receipt of a valuable, and, for aught that appears, an adequate, consideration, does not estop Mrs. Vincent to show that there was no consideration, as it would do had she been sui juris. Harden v. Darwin, 77 Ala. 472, 482; Wilder v. Wilder, 89 Ala. 414, 418, 7 South. 767, 9 L. R. A. 97, 18 Am. St. Rep. 130. And, in our opinion, as we have said, she has clearly shown that there was no consideration for the deed. It is void, and must be canceled, as a cloud on her title, as prayed in her bill. Accordingly, the decree of the chancellor is reversed, and a decree will be there rendered adjudging the invalidity of the deed, and directing it to be delivered up to the register of the Madison chancery court, and be canceled by him. Reversed and rendered. III. Description of Property Conveyed HOBAN v. CABLE. (Supreme Court of Michigan, 1894. 102 Mich. 206, 60 N. W. 466.) Error to circuit court, Mackinac county; C. J. Pailthorp, Judge. Ejectment by James Hoban against James F. Cable to try title to a parcel of land on Mackinac Island. Judgment for plaintiff, and defendant brings error. Affirmed. 3 As to the sufficiency of consideration in a deed, see Fuller v. Missroon, 35 S. C. 314, 14 S. E. 714 (1892), reported herein ante, p. 31. For discussion of principles, see Burdick, Real Prop. § 284. |