50 Ala. 221 | Ala. | 1874
In 1854, B. C. Jones became the administrator, in Alabama, of the estate of E. A. Brevard, a resident citizen of North Carolina, who left there a will, of which the appellants were the appointed executors. On the 29th of May, 1869, these executors, on a bill filed in Montgomery county in 1860, against Jones and his sureties, for the settlement of his ancillary administration, recovered a decree for a large sum against the sureties and his administrator, he having died after the commencement of the suit. An execution on this decree was levied on certain lands, an undivided half interest in a stock of drugs, &e., and one hundred shares of stock in the Red Mountain Iron & Coal Company, as the property of B. R. Jones, one of the sureties. The appellee, his wife, claimed the property, as her own, and not subject to the payment of the debt for which the levy was made. By this bill she obtained an injunction against the sale, and a decree declaring her title.
Between the years 1855 and 1858, the appellee and her husband sold two parcels of land, one of which was given to her by her mother, Mrs. Taliaferro, in 1843, and the other descended to her previously from her father. For the first, $2,000 were obtained, and for the other $2,<500. The money was appropriated by the husband to his own uses. The laws protecting the estates of married women certainly fastened on to these lands, to the extent of securing to the wife whatever interest
In Sessions v. Sessions, 33 Ala. 522, it was said, that the sale operated as a conversion of the realty into personalty, which, as new property, became her separate estate by virtue of the Code, § 1982 (R. C. § 2371). Even if it were practicable to trace the husband’s marital right to the use of this property, through its transformation, it is inexpedient and inequitable to do so against the wife, in favor of creditors of the husband, whose claim accrued after the enactment of the statutes referred to, which made so radical a change in the law. It was within the authority of the legislature to exempt the rents, income, and profits of the wife’s property from the payment of the husband’s debts, while permitting to him the enjoyment of them ; and this, I think, the law has done. At any rate, real and personal property are subject to the laws which govern them respectively, and may be converted by the owners from one into the other before the rights of others have attached.
All of the property above described, to wit, the two parcels of land converted into personal property, the damages on account of the removal of the houses, the two slaves, and the distributive share in Mrs. Taliaferro’s estate, aggregating in value about $13,798, clearly belonged to the appellee, as her separate statutory estate, and was not subject to the payment of her husband’s debts. It was so decreed by the chancery court in 1867, and the land in controversy was sold under the judgment then rendered, and purchased by the appellee in satisfaction of it.
Tbe identical profits of the wife’s separate statutory estate do not belong to tbe husband. If be misapply them, so that she is deprived of proper maintenance, be will be removed from tbe trusteeship, and tbe control of tbe property, witb its rents, issues, and profits, will be given to her. R. C. §§ 2383, 2384. They are not subject to the payment of bis debts. R. C. § 2372. If he should invest them in ber name, or for ber account, such investment would be her property. Must be, in making tbe investment, use the identical profits ? If be were to buy a tract of land for himself, and one for bis wife, for cash, and pay for bis own with ber money, and for hers witb bis money, would both parcels be his, without regard to bis intention ? If so, then circumstances of indifference may overrule reason.
A person may sell his own property bond fide, or make a simulated sale of it, before bis creditor obtains a lien. In the first case, be will defeat his creditor of tbe property. In tbe other, he will fail on account of bis fraud. If be restore to his wife property for that of hers which be bad taken, and which was not his, nor subject to bis debts, is there no consideration for it, because be is not accountable to ber, and husband and wife cannot contract witb each other ? He is not forbidden to account to her, and he need not contract witb ber. Restitution is not alone of tbe specific thing, but it may be of something else. Tbe creditor’s ground of complaint, in such case, is not tbe restitution, but some imposition practised upon him, whereby be was induced to give the credit, or is withheld from collecting his demand. In short, tbe creditor is not injured, if tbe husband honestly restores to bis wife what be bad taken from her. The rule is tbe same as between other persons, if be chooses to account. Tbe justice of it is shown in tbe fact,
The statute very explicitly declares, that “ no execution shall issue on a judgment or decree of the circuit, chancery, or probate court, on which an execution has not been sued out within one year after its rendition, until the same has been revived by scire facias, ” &c. R. C. § 2820. The Code of 1852 was to the same effect in respect to judgments of the circuit court. Code, § 2419. The law previously, as far back as 1807, allowed execution on the judgment of any court of record, within the year. In 1835, the legislature, because doubts had arisen whether a scire facias would lie on a judgment where execution had not issued within the year and day, enacted that the plaintiff should have it. Clay’s Dig. 199, § 1; 207, § 29. If it was doubtful whether a scire facias would lie, it must have been certain that an execution could not have issued. Under these older laws, this court has held, that executions issued after the year and day were not void, but voidable at the option of the defendant alone, unless other persons had in the mean time acquired rights. Collingsworth v. Horn, 4 S. & P. 237; Boren v. McGehee, 6 Port. 432; Fournier v. Curry, 4 Ala. 321; Jackson v. Bartlett, 8 Johns. 361; Pollard v. Cocke, 19 Ala. 188. It can make no difference if the plaintiff in execution is the purchaser, because the question is not one of notice, but of the status of the execution.
The retention in the Revised Code of section 3478, which was anterior to section 3480, makes it our duty to give effect to it, if practicable, not inconsistent with a just interpretation of the latter. An execution levied, collected, and returned, is the work of the sheriff. He must return it at the time specified in the writ, whether that be a particular day, or simply “ according to law.” Forward v. Marsh, 18 Ala. 645. Section 3480, in respect to the return, is a direction to the sheriff, who has no discretion in the matter. Neither the law court, nor its clerk, is given any discretion about the return day of an execution issued from it. But the court of chancery, as a court of relief, must be allowed more latitude. On a decree for the foreclosure of a mortgage, or the enforcement of an equitable lien, the property must be sold, and the sale confirmed, and the balance due ascertained by the decree of the court, before an execution can issue. R. C. § 3479. This will take time, and equitable time should be given, which may extend beyond the next term of the court. Therefore was the return day left discretionary with the court, or the register, except that it must
The decree is affirmed.