95 Ala. 563
Ala.
1891
WALKEB, J.

Tbe statute provides, in general terms, that tbe wife must sue alone for tbe recovery of ber separate property. — Code of Ala., § 2347. Tbe language is broad enough to include a suit by ber against ber husband. Tbe conclusion that tbe wife may now sue ber husband at law is supported by other provisions of tbe “Married Woman’s Statute.” Important contract and property rights of tbe wife, for tbe enforcement of wbicb the statute requires ber to sue alone, are so far without tbe influence of tbe marital relation that they may as well be violated by tbe husband as by any stranger. Tbe earnings of tbe wife are ber separate property : she has tbe control and management of her separate estate, and is entitled to tbe rents, income and profits; she may contract with ber husband; if be is living apart from ber, without fault upon ber part, or if be be of unsound mind, she may convey or dispose of ber real or personal property in any manner as if she were sole; and, without tbe consent of ber husband, if be is of unsound mind, of has abandoned ber, or is a non-resident of tbe State, or is imprisoned under conviction for crime, she may enter into and pursue any lawful trade or business, as if she were sole.- — Code, §§ 2341-2350. Her husband, like any other person, may unlawfully deprive ber of ber separate estate, or become liable on a contract with ber. Tbe statute certainly establishes a rule wbicb, as to tbe classes of cases covered by its provisions, operates to remove tbe common-law disability of tbe wife to sue alone. Suits against tbe husband are not, in terms or by implication, excepted from tbe operation of tbe statute. It is provided, in general terms, that tbe remedy for tbe enforcement of certain rights of tbe wife is by suit in ber name alone. Some at least of •those rights exist in ber favor as against ber husband. There is nothing in tbe statute to show that tbe existence of tbe marital relation affects or impairs tbe remedy for tbeir enforcement. Our conclusion is, that if tbe suit is one *566wbicb tbe statute requires to be brought in tbe name of tbe wife alone, it may be prosecuted against ber busband, if be is tbe party responsible for tbe violation of tbe right to be vindicated by tbe suit. Tbe effect of tbe statute is, that tbe legal rights of tbe wife as against ber busband may be enforced by legal remedies. Tbe demurrers to tbe pleas of coverture were properly sustained; and charges 3 and 4 requested by tbe defendant were properly refused.

Prior to the present statute, property purchased by tbe wife with ber own money, or with money wbicb she earned, and wbicb ber busband permitted ber to retain, was, as between herself and ber busband, ber separate estate. — Carter v. Worthington, 82 Ala. 334; Bush v. Henry, 85 Ala. 605. When tbe rights of creditors are not involved, it is immaterial to inquire whether it belongs to ber statutory separate estate or to ber equitable separate estate; for, with a single exception not now necessary to be mentioned, tbe distinction between tbe two classes of estates has been abrogated, and property acquired by tbe wife by gift from, or contract with ber busband, is ber separate property within tbe meaning of tbe present statute, -and may be recovered in an action at law in ber own name. — Code, §§ 2347, 2351; Rooney v. Michael, 84 Ala. 585. Tbe rights of tbe busband, as trustee of tbe wife’s statutory separate estate, were created by statute, and could be taken away in like manner. Mem. & C. R. Co. v. Bynum, 92 Ala. 335; Ramage v. Towles, 85 Ala. 589. As to ber equitable separate estate, if not limited or restrained by tbe instrument creating it, in a court of equity tbe wife was regarded as a femme sole, and could bind or charge tbe estate by any contract wbicb would bind ber if sole. — 3 Brick. Dig. 548, § 85. Tbe statute gives legal recognition to such estates, and authorizes tbe pursuit of legal remedies for tlieir protection. No constitutional right of tbe busband is affected by a statute giving tbe wife a standing in a legal forum in reference to property wbicb, under tbe rules enforced by courts of equity, she could already deal with as if she were sole. As to neither of tbe two classes of estates does tbe statute purport to have any such retrospective operation as to impair any vested right of tbe busband. He has no right to complain that tbe remedies in favor of the wife for tbe protection of ber separate property are changed and enlarged. Tbe wife alone may now sue for tbe recovery of ber separate property, whether, before tbe enactment of tbe statute now in force, it belonged to ber statutory or to ber equitable separate estate. There was evidence tending to show tbe state of facts hypothesized *567in the part of the general charge to which an exception was reserved. The proposition there asserted was correct under the rules above stated.

If the plaintiff offers evidence to support a state of facts on which he is entitled to recover, it is not incumbent upon him to go further and show affirmatively that the defendant has no defense. Charge one requested by the defendant was incorrect, in putting upon the plaintiff the burden of proving more than was required to entitle her to a recovery.

The plaintiff and the defendant had been living apart for several years. There was evidence tending to show that, when they separated, the defendant gave certain cattle to the plaintiff. The mere fact that the defendant intended this as a settlement of the plaintiff’s claim could not affect her title to property which already belonged to her, and which she did not consent to give up. Plaintiff’s acceptance of the defendant’s gift to her did not estop her from claiming what was already her property. Charge six requested by the defendant was properly refused.

Affirmed.