[Thompson, et al. v. Hudgins, Exec., &c.] being the absolute owner of the stock by virtue of the conveyance to her by her grand-father, she had a plain right and remedy to have its transfer to her entered upon the books. That she was such owner, see Duke v. Cahaba Nav. Co., 10 Ala. 82; Johnson v. Laflin, 103 U. S. 800; 2 Brick. Dig. 43, §§ 50 et seq. The bill shows the stock went into her possession on the death of the life tenant. If the executrix had detained the certificates from her, she would have been entitled, at least in a court of equity, to recover them; and to have compelled the officers of the bank to enter the proper transfers on the books. The execution of the deed, by Mr. Hudgins, vesting at least the complete beneficial ownership, carried with it authority and duty to the bank to make the proper transfer on the books, upon presentation of the certificates and deed; and to the performance of this duty the bank could have been compelled.-Duke v. C. N. Co., supra, (44 Am. Dec. 472); Bank of Utica v. Smalley, 2 Cowen, 770, (14 Am. Dec. 526 and note); Sargent v. Ins. Co., 8 Pick. 90; Dickinson v. National Bank, 129 Mass. 279, (37 Am. Rep. 351 and extended note); Commercial Bank v. Kortright, 22 Wend. 348, (34 Am. Dec. 317 and note); State Bank v. Cox & Co., 11 Rich. Eq. (S. C.) 344, (78 Am. Dec. 458); Farmers & M. Bank v. Wasson, 48 Iowa, 336, (30 Am. Rep. 398); Cushman v. Thayer Mfg Co., 76 N. Y. 365, (32 Am. Rep. 315); Iron Railroad Co. v. Fink, 41 Ohio St. 321, (52 Am. Rep. 84); Kimball v. Union Water Co., 13 Am. Rep. 157; Morgan v. Bank of N. A., 11 Am. Dec. 575; Bond v. Mt. Hope Iron Co., 97 Am. Dec. 49; Baltimore R'y Co. v. Sewell, 6 Am. Rep. 402; P. & M. Mut. Ins. Co. v. Selma Savings Bank, 63 Ala. 585. The case of Cushman v. Thayer Mfg. Co., supra, was one of a gift of stock, and is the same, in principle, as the present case, on the point under discussion. Moreover, while the National Banking act authorized the bank to prescribe, by by-laws, the method of transfer of its stock, there is nothing in this record to show that the power had been exercised. We know nothing of any rule on the subject, prescribed by this bank. We hardly think it necessary to discuss the proposition of counsel for respondents, that Mr. Hudgins was, by reason of the agreement of 1886, lulled into forbearance to coerce the bank to declare dividends during his [Thompson, et al. v. Hudgins, Exec., &c.] life. There was no agreement on his part to so forbear, nor is there a semblance of a showing before us, that the bank had conducted itself so unfaithfully, in that regard, that he had any right or power so to coerce it. Taking the averments of the bill to be true, there was practically nothing to divide. It is manifest the agreement of 1886, contemplated that the promise of complainants to pay was based upon the sum which should be found to have accumulated in the bank from net earnings, at the time of the death of Hudgins. Mrs. Thompson acquired no interest, either by the deed to her or that agreement, in any dividends which might have been declared during his life. Would it be contended that she could have collected such dividends? Obviously, Mr. Hudgins felt that his remaining years of life would be few; and, probably knowing the condition or policy of the bank, believed no dividends would be declared during his life, and, hence, was prompted to procure the agreement. He never thought of denying himself such dividends, if any should be declared. This idea of forbearance seems not to have been in the minds of the parties when the mortgage was drawn, as it was not alluded to in that instrument. On the contrary, it recites that the executrix claimed that the whole accumulated surplus belonged to her-not that it belonged to Mrs. Thompson, who owed her for it. Mr. Hudgins was free to act as he chose in reference to compelling the bank to declare dividends. But, the demurrers are bad in two other aspects of the case. We are now in a court of equity. We are concerned with the equitable principles which govern the rights of the parties, in respect of the mortgage in question. The bill is, in a sense, to restrain the enforcement of the mortgage. The same rules of equity are justly applicable, as would apply if the mortgagee were proceeding to foreclose. That would be in the nature of specific performance-a remedy resting in that sound discretion of the court, which will see to it that manifest injustice and oppression shall not be accomplished by its enforcement. The present bill, taken most strongly against the pleader, shows that the recital in the contract, which was the main inducement to the contract, that there was, at the death of Mr. Hudgins, an accumulated surplus in the bank of $125,000, was [Thompson, et al. v. Hudgins, Exec., &c.] founded in mutual mistake of the parties. That the promise was made in reliance upon this belief, and the promise was expressly to pay the amount earned by the 200 shares out of a surplus recited to be actually existing, for that amount; whereas, the bill taken most strongly against complainants as to when the same accrued, shows that, in point of fact, as was afterwards ascertained, the surplus did not actually exceed $30,000; so that the interest of the 200 shares therein, instead of being $10,000, as computed in the contract, could not exceed $2,400; and complainants have already paid on account of said contract, largely more the sum of $2,400. We think it cannot admit of doubt, upon the writings themselves, that there was no intention on the part of the complainants or the executrix, that the complainants should obligate themselves to pay more than the interest of the 200 shares in the surplus profits actually accumulated, at the time the life estate fell in. Such was the agreement, in express terms, made with Mr. Hudgins in 1886, and which was embodied in the mortgage. The mortgage was so written as to represent, that such surplus amounted to $125,000. The complainants aver that they believed the representation to be true, and acted on it. The executrix cannot be heard to say she knew it to be untrue, and knew the surplus was only $30,000, for presumably, the mortgage was prepared and tendered by or for her; and for her so to affirm would be to confess to a fraudulent misrepresentation of a most material fact, or, at least, to a fraudulent concealment of a material fact, against which, of itself, a court of equity would grant relief. Here, then, by a mutual mistake of fact, on the parts of both promisors and promisee, the former were led to obligate themselves to give up and pay $10,000, when, according to the real intent and purpose of both, the sum should have been only $2,400; one-half of which was paid off by the 6 per cent. dividend. The executrix has not altered her position by reason of the mistake. She is yet the holder of the obligations, and can suffer no possible injury from a correction of the mistake, in the enforcement of justice and honesty. Can it, therefore, be doubted that equity will declare this pro tanto want or failure of consideration? We think clearly not. In Colton v. Stanford, 82 Cal. 351 (16 Am. St. Rep. 137), VOL. 116. [Thompson, et al. v. Hudgins, Exec., &c.] we find a lengthy discussion of this and kindred questions, and that the rule deducible therefrom is, that if the mistake is such that the party would, nevertheless, have entered into the contract, relief will not be afforded; but if it appears that the mistake was so material, though there were other valuable considerations, that the party would not have entered into the contract, the latter will be rescinded. There is no question of offer to do equity. The complainants have paid largely more than the amount they ought to have paid, and the demurrer does not raise the question. Again, the agreement of 1886 was void by reason of the coverture of Mrs. Thompson. The married woman's law was changed in 1887, so as to authorize a wife to contract, in writing, with the written assent of the husband; and she and the husband can mortgage her lands to secure her contracts, so entered into; but, of course, the contract, to be binding, must be supported by a valuable consideration. The agreement of 1886, is embodied in, and constitutes the foundation stone of, the mortgage and notes of 1888. Without it there can be no pretense of a consideration for the latter. The agree ment being void, imposing no personal liability or obligation, either at law or in equity, upon Mrs. Thompson, and creating no legal or equitable charge upon her estate, will not support a subsequent promise, even had she been discovert at the time of such subsequent promise. This is the settled doctrine of this court, and the established rule by the great weight of authority elsewhere. No mere moral duty, disconnected from all legal or equitable charge upon the person or estate of the wife, will support her subsequent promise.-Vance v. Wells, 8 Ala. 399; Hetherington v. Hixon, 46 Ala. 297; Turlington v. Slaughter, 54 Ala. 195; McCravey v. Todd, 66 Ala. 315; Doss v. Peterson, 82 Ala. 253; 2 Kent. Com., (7th ed.), marg. p. 465, to p. 586, and notes; 3 Am. & Eng. Encyc. of Law, 841, citing cases from Missouri, Indiana, Alabama, Vermont, North Carolina, Georgia and England. Some New York, Pennsylvania, and English cases are cited, as contra. Here there was not even a mere moral obligation or duty resting upon Mrs. Thompson, for she received, or had the benefit of, absolutely nothing by virtue of the agreement. Even those cases which give a broader meaning [Troy Fertilizer Co. v. Prestwood.] and operation to the term "moral obligation" than do our adjudications, were cases where the wife borrowed money or purchased and enjoyed goods, which in good conscience she ought to pay for; and her subsequent promises, when discovert, so to pay, were upheld on that account.-2 Kent, supra, note. To enforce a con tract of a married woman, such as this, would be to set aside the great line of our decisions, built up through so many years, construing the married woman's laws of this State. We are compelled to the conclusion that the demurrers ought to have been overruled; and a decree will be here rendered reversing the decretal order of the city court; overruling the demurrers to the bill, and remanding the cause. Reversed, rendered and remanded. In the case of Lucy P. Hudgins, Extrx. et al. v. Adam E. Riser, et al., appeal from Birmingham City Court, number 576, Sixth Division, the application of appellees for a rehearing is granted upon the authority of the foregoing opinion; the judgment heretofore rendered by this court set aside, and the decretal order of the city court affirmed. BRICKELL, C. J., dissenting. Troy Fertilizer Co. v. Prestwood. 1. Jurisdiction; right to maintain bill during the pendency of another suit involving the same question.-Where the jurisdiction of a court and the right of the plaintiff to prosecute a suit has once attached, that right can not be arrested or taken away by proceedings in any other court in reference to the same subject matter; and where a bill has been filed in a chancery court of one county to have a deed to lands declared fraudulent and void as against the grantor's creditors, and such court has acquired jurisdiction of the parties and the subject matter of the suit, the grantee in said deed can not, during the pendency of such suit, maintain a bill in another court, to enjoin the suit and have the deed declared a valid conveyance; and such facts ap |