L. M. Stone, M. L. Stausel, and Watts and Son, for the appellant.

Caldwell and Johnston, contra.

STONE, C. J. This case was finally decided on demurrer to the bill as amended. A demurrer is an admission of the truth of every fact and intent which is sufficiently averred, and it admits no more: Lake v. Security Loan Ass'n, 72 Ala. 207; Flewellen v. Crane, 58 Id. 627; Street Railway Co. v. Rand, 83 Id. 294.

One of the purposes of the present bill is to enjoin a suit at law for the recovery of a tract of land, instituted by Mrs. Pippen in July, 1886. If the averments of the bill be true, Mrs. Pippen's ejectment suit is founded on an alleged inheritance from her mother, and the mother's title rests on a deed to the lands made by the said David Manning directly to her, at a time when the relation of husband and wife subsisted between them. Commenced, as this suit was, in July, 1886, the deed from the husband directly to the wife did not vest a legal title in her, and as a consequence, the action of ejectment founded on such title could not be maintained: McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Id. 67; Warren v. Jones, 68 Id. 449; Powe v. McLeod, 76 Id. 101; Maxwell v. Grace, 85 Id. 577.

If the suit had been brought after February 28, 1887, when the new statute defining the rights of married women was approved, the action could have been maintained on the title averred: Maxwell v. Grace, supra.

The original bill avers that the complainant, Manning, intermarried with Mrs. Atkinson in 1868; that she had, at the time of her marriage, two minor or infant children; and that Minnie, now a married woman, is one of them. The other, a son, has since died, leaving a widow and two infant children. The bill further avers that, in 1871, he, the said David, made to his wife a deed to said lands, being induced to do so by the earnest solicitations and importunities of his wife; she promising, in consideration therefor, and as an inducement thereto, to make and execute her will, and therein bequeath and devise to him one third of her estate, including said lands; and that in consideration of this promise on her part, he did execute a deed conveying the lands to her. The bill further avers that Mrs. Manning died in 1884, without complying with her promise, and without making any will. The bill

avers that the deed to the wife recites a valuable consideration, which is not true as stated. The true consideration, it avers, was the promise of the wife to make her will, and therein provide for the husband as is stated above. It is not stated whether or not her said promise to make a will was in writing. In this state of the pleading we cannot assume that Mrs. Manning's promise was simply oral, and pronounce absolutely on the sufficiency of the averments to take the case without the influence of the statute of frauds. To authorize that defense to be raised by demurrer, the bill must show affirmatively that the contract or promise declared on was not in writing: Bromberg v. Heyer, 69 Ala. 25; Phillips v. Adams, 70 Id. 373.

Treating the case then, as if Mrs. Manning's alleged promise to make a will was in writing subscribed by her, the question arises, Under what conditions and to what extent is such promise binding? Pretermitting for the present her disability on account of coverture, the authorities are overwhelming, and rest on the soundest basis, that such a promise, supported by a valuable consideration, is valid and binding unless assailed on some other sufficient ground: Bolman v. Overall, 80 Ala. 451; Johnson v. Hubbell, 10 N. J. Eq. 332; 66 Am. Dec. 773, and note containing citation of authorities 784; Caviness v. Rushton, 101 Ind. 500; 51 Am. Rep. 759.

The case made by the present bill is, that, relying on the said promise of Mrs. Manning to make the alleged will, he, the complainant, conveyed to her the land in controversy, and she died the owner of it. If this be true, Mrs. Manning's coverture is no bar to any appropriate relief that can be carved out of the land thus conveyed. The land being acquired on the faith of such promise, equity will charge it with a trust, in the nature of unpaid purchase-money, for the indemnification of the vendor, to the extent he has suffered from her breach of promise: Marks v. Cowles, 53 Ala. 499; Moore v. Worthy, 56 Id. 103; Sterrett v. Coleman, 57 Id. 172; Norman v. Harrington, 62 Id. 107; Carver v. Eads, 65 Id. 190.

The promise of Mrs. Manning being only to make a will, she had her lifetime to do it in; and there was no actionable breach until she died without having complied with her promise. It follows that the statute of limitations did not begin to run until her death. It opposes no bar in this case if the complainant is otherwise entitled to relief: Bolman v. Lohman, SO Ala. 451.

If the agreement was such as is set up in the bill, then the conveyance of land made by complainant to his wife was a valuable consideration, which would uphold and bind her promise to make the alleged will; and her promise was a valuable consideration on which his deed to her was executed. This, if true, takes the transaction without the category of a voluntary conveyance or gift by the husband to his wife, and constitutes it a deed of bargain and sale on valuable consideration. The consideration of the deed being on its face valuable, that clause was open to parol proof of any other valuable consideration, because such proof would not change the legal effect of the conveyance as a muniment of title. The promise of the wife, if made, was a valuable consideration, and there is no incompatibility between it and any other valuable consideration which the deed may recite: McGehee v. Rump, 37 Ala. 651; M. & M. R'y Co. v. Wilkinson, 72 Id. 286; Stringfellow v. Ivie, 73 Id. 209.

The court of chancery being without power to compel the execution of a will, specific execution of the agreement could at no time have been enforced. But the complainant is not without remedy. True, if Mrs. Manning had property other than the land, her promise, she being a married woman, could not bind it, unless it was an equitable estate. Having acquired the land, however, on the faith and consideration of the promise she made, chancery will seize upon it, fasten a trust upon it as for unpaid purchase-money, and, as far as its value will extend, will secure to the complainant what he lost by his wife's failure to keep her promise.

The third of the land can be secured to him in kind. If, at her death, she possessed other property, or property interests, which would have inured to him under the will, if made as per alleged agreement, then, as far as the residue of the land will furnish the means, this should be made good to him.

In what we have said above we have treated this case as if Mrs. Manning's agreement to make a will in the terms alleged was in writing, and signed by her. Presented as the question is, we are bound to so treat it. The demurrer, alike to the original and amended bill, ought to have been overruled.

It is possible, if not probable, that Mrs. Manning's promise to make a will was oral; and if so, when the case returns to the chancery court, it will be necessary to consider it in the light of the statute of frauds. To prevent its returning upon

AM. ST. REP., VOL. XI. -4

us in that aspect, we will declare rules for the guidance of the chancellor.

The bill and its amendment present the question we are approaching in two phases: First, as a mere promise, in consideration of the deed, to make the alleged will, and a breach of that promise. The second phase shown in the amendment charges that when Mrs. Manning made and utilized her promise to make a will as an inducement to the execution of the deed, of which it thereby became the alleged consideration, she did it with the fraudulent intent not to comply with her promise, and that she carried that intent into execution by persistently refusing to comply until her death rendered a compliance impossible. These phases of the question depend on different principles.

If we treat the alleged promise of Mrs. Manning as simply a contract to receive and hold the land in express trust to compensate the grantor by making the averred compensatory will, then such promise would be inoperative under the statute of frauds: Patton v. Beecher, 62 Ala. 579; White v. Farley, 81 Id. 563.

The amended bill presents a different question. If there was a fraudulent intent in obtaining the deed, without intention to make the will, and pursuant to it the will was not made, then the question of the statute of frauds becomes immaterial. The fraud will vitiate the transaction, and remit the complainant to the rights he had before the execution of the deed. And the conduct of the wife after the execution of the deed may be looked to as aids in determining what her intention was when she obtained the deed. Equity, in such case, and to accomplish its ends, declares the grantee to be a trustee ex maleficio, and divests the title for the fraud in acquiring it: White v. Farley, supra; 1 Pomeroy's Eq. Jur., sec. 430; 2 Id., secs. 807, 1053 et seq.

Another question may arise in the further progress of this case, but it is surrounded with difficulties. We will not consider it unless it becomes necessary: Rakes v. Pope, 7 Ala. 161; Browne on Statute of Frauds, sec. 117, and notes; Shindler v. Houston, 49 Am. Dec. 326, 327, note; Christy v. Barnhart, 53 Am. Dec. 540, 541, note; Coyle v. Davis, 20 Wis. 564; McClellan v. Sanford, 26 Id. 595.

Reversed and remanded.

DEMURRERS.

A demurrer admits only such facts as are well pleaded: Chicago etc. R. R. Co. v. Swett, 45 Ill. 197; 92 Am. Dec. 206. Demurrers

admit all material facts that are well pleaded, and all necessary inferences from such facts; but all facts not alleged in the pleading attacked by demurrer, or necessarily inferable therefrom, are assumed not to exist: Supply Ditch Co. v. Elliot, 10 Col. 327; 3 Am. St. Rep. 586, and note 594; Twokey v. Fruin, 96 Mo. 104.

HUSBAND AND WIFE. - A deed directly from a husband to his wife will be upheld in equity, although void at law: Hunt v. Johnson, 44 N. Y. 27; 4 Am. St. Rep. 679; Sayers v. Wall, 26 Gratt. 354; 21 Am. Rep. 303; but a husband may make a gift or grant of property to his wife by a conveyance to her directly without the intervention of trustees (Story v. Marshall, 24 Tex. 305; 76 Ain. Dec. 106), where the statutes give the power to married women to enjoy, contract, sell, transfer, mortgage, convey, devise, or bequeath their property in the same manner and with like effect as femes sole: Burdeno v. Amperse, 14 Mich. 91; 90 Am. Dec. 225; compare note to Turner v. Shaw, 9 Am. St. Rep. 323–325.

STATUTE OF FRAUDS AS A DEFENSE. - Statute of frauds, when and how pleaded: See monographic note to Hotchkiss v. Ladd, 86 Am. Dec. 684-688. The statute of frauds must be pleaded only when it does not appear from the complaint that the contract was parol; and when it does so appear, and nothing is alleged to take the case out of the statute, the complaint is demurrable: Wentworth v. Wentworth, 2 Minn. 277; 72 Am. Dec. 97; Broder v. Conklin, 77 Cal. 330.

AGREEMENT TO MAKE A WILL. -The grantee in a deed absolute may bind himself by parol to devise the property to a designated beneficiary, and if in pursuance thereof he makes a will, it is irrevocable, and if he fails to execute it, it will be a fraudulent violation of his contract, and equity will give the beneficiary relief: Anding v. Davis, 38 Miss. 574; 77 Am. Dec. 658; compare Johnson v. Hubbell, 10 N. J. Eq. 332; 66 Am. Dec. 773, and note.

QUEEN INSURANCE COMPANY v. YOUNG.

[86 ALABAMA, 424.]

INSURANCE WIFE'S INSURABLE INTEREST IN GOODS PURCHASED. - A married woman may purchase goods on credit with the assent of her husband, or subject to his disaffirmance, and such contract to purchase creates a legal or equitable interest in the wife, which she may insure, provided she has a separate estate which she can charge by the contract to purchase. INSURANCE-CONCEALMENT OF FACTS.-If a married woman has an insurable interest in goods purchased by her on credit, her concealment of her coverture at the time of taking the policy is not a fact material to the risk, nor are her rights affected by private instructions to agents, uncommunicated to her, that they are not to issue insurance on stocks of merchandise in the hands of married women. INSURANCE - BREACH OF CONDITION

FORFEITURE. - Procuring additional valid insurance, in violation of an express condition in the first policy, without the written consent of the insurer, avoids the policy, unless the company has waived the right to insist upon such forfeiture.

INSURANCE CONDITIONS FORFEITURE. - Conditions in policy of insurance limiting or avoiding liability are strictly construed against the insurer, and liberally in favor of the assured.