Cannon v. Turner

32 Ala. 483 | Ala. | 1858

WALKER, J.

After the most careful consideration, we decided in Pickens and Wife v. Oliver, 29 Ala. 528, that the provisions of article 3, chapter I, title 5, part 2, of the Code, “ relate to and provide for estates of married women which arc made separate by operation of law; estates created by descent, gift, or in some other manner, without words lohich would have created a separate estate before our statutes on the subject; and not to estates which, independent of legislation, would have been separate by operation of the instrument or contract creating them.” — Gerald and Wife v. McKenzie, 27 Ala. 166; Friend v. Oliver, 27 Ala. 532; Willis v. Cadenhead, 28 Ala. 473; Gibson v. Marquis, 29 Ala. 668.

Section 1997, the last of the article above named, makes the provisions of the article operative on the estates of all married women, who have received property by descent, gift, or otherwise, since the first of March, 1848. If the distinction between separate estates created by law, and such estates created by conti’act, had not been made, the Code would have been unconstitutional in its operation upon separate estates created in the latter mode, after the first of March, 1848, and before the adoption of the Code. Influenced by that consideration, we drew the distinction in Willis v. Cadenhead, as to all separate estates created before the Code. That distinction we must extend to estates created afterwards, or else we must make an arbitrary and senseless discrimination iu the effect of the same words, when applied to instruments of different dates, equally within the letter of the statute.

[2.] Under the principle of the decision in Gibson v. Marquis and Wife, 29 Ala. 668, the coverture of the appellant at the time when the contract sued upon was made, was a complete defense to a suit, either before or after her coverture, unless the facts were shown which are requisite to the maintenance of an action under section 1987. One of those requisites is the existence of a separate estate, which must be made separate by law, not an estate .“which, independent of legislation, would have been separate by operation of the instrument or contract creating it.” The deed from Dawson, introduced for the purpose of showing that the defendant had a separate estate, by its terms creates what would, at common law, and independent of legislation, be recognized as a separate estate in a married woman. It follows, that there was a failure to show the kind of separate estate, which is an indispensable requisite to the maintenance of the action. We ¡lerceive that this point must be decisive of the case against the appellant, and therefore waive the consideration of the other questions which were argued by the counsel.

The judgment of the court below is reversed, and the cause remanded.