Bender v. Meyer & Co.

55 Ala. 576 | Ala. | 1876

BRICKELL, C. J. —

The assignments of error present several questions, but we deem it necessary to express an opinion on two only, which will probably be decisive of the case. The first is, whether the constitution has relieved the wife’s separate estate from its statutory liability for articles of comfort and support of the household ? The section of the constitution, which, it is argued, operates to remove the liability, is in these words : “ The real and personal property of any female in this State, acquired before marriage, and all property, real and personal, to which she may after-wards be entitled, by gift, grant, inheritance, or devise, shall be and remain the separate estate and property of such female, and shall not he liable for any debts, obligations, and engagements of her husband, and may be devised or bequeathed by her the same as if she were a feme sole.” — Const. 1867-8, art. 14, § 6.

In Taylor v. Woods, 52 Ala. 477, we said: “ The constitution is not the origin or beginning of law in the State. It was made by and for a people among whom the common law prevailed, so far as applicable to their condition, and not superseded or repealed by legislation or constitutional provision, — a people having a well-defined, and well-understood system of law, written and unwritten, statute and constitutional. It was not intended to abolish or destroy this system, and on its ruins raise up another, new and different. This system continues, except so far as it is repugnant to tbe constitution, subject to such limitations and restrictions as it imposes. In tbe light of the former law and existing system, new constitutional provisions are to be read and interpreted, if their real meaning is ascertained, and the intent of the lawgiver carried into effect.”

In the interpretation of constitutional provisions like that under consideration, the intent of their adoption, the end proposed to be accomplished, cannot well be ascertained, nor can they be justly interpreted and construed, unless the prior state of the law, written and unwritten, is kept in view. It is only by consulting the common law, that we can understand and explain the full import and significance of the terms employed in this section, the changes it may work, and render secure against legislative enactment. By the common law, the husband and wife were regarded as one person, and her legal existence and authority were in. a degree merged in that of the husband. She had not capacity to contract, nor the management or disposal of property. If at the marriage she was seized of an estate of inheritance, or she became seized thereof during marriage, the husband became seized, taking the rents and profits during their joint lives, and by possibility during his life, leaving to the wife or her heirs a reversion only. If the estate was of freehold, and not of inheritance, as for her own life, or that of another, the husband became seized of such estate, taking the rents and profits during marriage. Her chattels real passed to the husband, who could sell, assign, or make other disposition of them, at pleasure. He had power to reduce to possession her choses in action, and by reduction they became his own absolutely. Personal property of which she had possession, or of which title and possession accrued during marriage, vested immediately and absolutely in the husband. A liability of all such property to the debts of the husband, and his power to dispose of it, were incidents of the right and interest thus created by the law.

At the adoption of, and for twenty years prior to the constitution, the statutes had changed the common law — had divested the husband of the marital rights to the estate, real and personal, of the wife, which the common law conferred, and declared such estate, whether existing at the time of the marriage, or subsequently acquired, “the separate estate of the wife, not subject to the payment of the debts of the husband.” — R. 0. § 2371. The manner in which it should be held during coverture; the mode of its alienation; the debts or demands with which it should be chargeable; its descent and distribution, if the wife died, the husband surviving, and she had not exercised the power, expressly given, of disposition by will, — were defined by statute. — B. 0., part 2, title 5, chap. 1, art. 3. The debts or demands with which it is chargeable are, “articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law.” — B. 0. § 2376. Though a liability is thus fastened ,on the estate for these debts or demands, the common-law liability of the husband remains, and the liability of the estate can lie enforced only through the medium of a suit against him and the wife; or, after suit and judgment against him alone, and return of execution “ not satisfied,” an order of sale obtained Bom the court. — B. C. §§ 2376-7.

Interpreting the constitution in the light of the common law, and of the pre-existing statutes, we think its terms, and the intent of its framers, .are satisfied, if it is regarded as affirmatory of the statutes, inhibiting a repeal of them, which would restore the common law, divest the wife of title, and invest the husband with a title, to which liability for his debts would follow as an incident. Without the constitutional provision, it rested within legislative power and discretion to repeal the statutes, and to determine whether the common law should be partially or wholly restored; whether the wife should have a separate estate in her property, or a joint estate with the husband; whether the estate should be subject to past or future debts of the husband. Legislative power over the subject would have been plenary, and indisputable. The constitution, of its own unaided force, secures the estate to the wife, Bees it from the common-law liability to the payment of the husband’s debts, and clothes her with the power of devising or bequeathing it. Legislation cannot deprive her of the estate- — cannot take away her power to devise or bequeath it, and cannot fasten on it a liability for the debts of the husband.

A statute repugnant to the constitution, if pre-existing, is abrogated by it; if subsequent, is void, because offending it. At the adoption of the constitution, “contracts for articles of comfort and support of the household ” were the debt of the husband, as at common law7. They were not the sole and exclusive debt of the husband, but they were charges on the statutory separate estate of the -wife, and legal remedies for their enforcement were prescribed. The liability of the husband, and the liability of the separate estate, was in the nature of a joint liability. — Cunningham v. Fontaine, 25 Ala. 644; Sharp v. Burns & Coles, 35 Ala. 653. It was the character of the consideration, and not the agency by which the contract was entéred into — whether by the wife alone, or by the husband alone, or by husband and wife jointly — that was a material inquiry in determining whether the liability existed. — Durden v. McWilliams, 31 Ala. 442. The wife and her family having been supplied with necessaries, suitable to their degree and condition in life, the liability of the husband, and the liability of the separate estate, arose. It is from debts created by the husband alone, for which no liability rested on the estate, otherwise than as it might spring from his contract, the constitution frees the wife’s separate estate. It does not refer to charges imposed on it by law, in furtherance of the policy to which it owes its creation, providing for the maintenance and support of the wife and her family, while protecting them against the misfortune or extravagance of the husband. "We hold, therefore, that the constitution does not free the separate estate from its statutory liability for “articles of comfort and support of the household.” That liability remains, capable of enforcement in the mode prescribed by the statute.

2. The remaining question is, can the wife, when 'Sued on such contract, plead in bar, that the lands sought to be subjected as her separate estate are the homestead of the family, exempt from sale for the payment of debts? The common-law principle, that in actions at law the wife cannot be plaintiff or defendant, on contracts made with or by her during the coverture, is not wholly abrogated by the statute. Nor does the statute impose on the wife a personal liability, separately, or jointly with the husband, for articles of comfort and support of the household. — Henry v. Hickman, 22 Ala. 685. The operation of the statute is to impose on the separate estate a liability for articles of comfort and support of the household, and to afford a remedy by action at law to enforce the liability. The judgment rendered is personal against the husband, having the effect of any other personal judgment. As to the wife, no judgment is rendered binding her personally — it is a judgment condemning the separate estate to sale for the satisfaction of the liability. To support the action as to the wife, it must be shown that she has a statutory separate estate; the estate must be described in the complaint, and in the judgment; and its existence when the contract was made, and its continuance to the commencement of suit, must be averred and proved. If the complaint does not by proper averments disclose these facts, it does not, as to the wife, disclose a substantial cause of action, and will not support a judgment by default.' — -Childress v. Mann, 33 Ala. 206; Durden v. McWilliams, 31 Ala. 438; Sprague v. Daniels, Ib. 206; Ravisies v. Stoddart, 32 Ala. 599.

Tbe existence of a statutory separate estate, liable for tbe satisfaction of tbe demand, is tbe indispensable constituent of tbe wife’s liability to suit at law. It will not be denied, it would be an answer and bar to tbe suit against ber, that ber estate in tbe property sought to be charged was not a statutory, but an equitable separate estate.' — Gannon v. Turner, 32 Ala. 483. Tbe immunity of tbe estate, on which tbe plaintiff claims to impose by tbe action and- judgment a liability, renders tbe coverture a conclusive bar in a court of law. The homestead of any resident, not exceeding eighty acres in quantity, and not exceeding two thousand dollars in value, is by the constitution exempt from liability for tbe payment of debts. No court can, without violating tbe express words of tbe constitution, condemn it to sale. Tbe third plea was, for tbe wife, a full answer to tbe suit, and tbe court erred in sustaining a demurrer to it, as in tbe charges given asserting tbe converse of tbe plea.'

Tbe judgment is reversed, and tbe cause remanded.