15 Ala. 311 | Ala. | 1849
The property upon which the deed was intended by the parties to operate, was the undivided interest of the wife, in the estate of her father, the legal title to which was vested in the mother, as executrix. That the wife was in equity, before her interest was reduced to possession, entitled to a settlement out of this property, as against the claims of her husband, his creditors or assignees, is too clear to require argument or authority. This right then of the wife, to have a settlement decreed her in opposition to the right of the husband, and to all who may claim through him, is the consideration upon which the deed of the first of January, 1845, executed by the husband in favor of the wife, is founded; and that such a consideration is sufficient to support the deed in equity, must be manifest from the reflection, that had the wife filed the bill against the husband,
It is certainly true, that the deed must be considered as a nullity in a court of law, for at law, the individual existence of the wife is merged in that of her husband. They are considered as one', and cannot contract with each other. But the rule is widely different in a court of equity, and husband and wife may for good reason, and on valuable consideration, contract with each other, and equity will uphold and sustain the contract. 2 Sto. Eq. 601, §. 1372. In the case of Gallego v. Gallego’s ex’r, 2 Brock. 285, the plaintiff was entitled to a legacy under the will of her father, and her husband executed an instrument under seal, relinquishing his right to the legacy to the wife. The wife sued the executor of the will, by her next friend, and the executor insisted, that she being a feme covert, could not demand the legacy; and further, that her husband was indebted to the testator, and insisted on the right to retain the amount of this debt; also, that another creditor of the husband had attached the legacy in his hands.
Ch. J. Marshall held the relinquishment made of the legacy by the husband, in favor of the wife, to be valid against his creditors; and decreed the payment of the legacy to her, in accordance with the terms of the instrument. Indeed, it must necessarily result from the fact, that a married woman can hold, and enjoy separate property, and that she is entitled against her husband to have a settlement made upon her out of her choses in action not reduced to possession, that the husband and wife may contract in reference to those subjects ; and if their contracts are reasonable, a court of equity must sustain them. It is not contended, that there is any circum
The decree of the chancellor must be affirmed.