81 Ala. 411 | Ala. | 1886
— The title of Mrs. Jost to the lands in controversy accrued to her during coverture with her present husband, Frederick Jost. It was conveyed directly to her by deed bearing date December 15, 1880, containing no words excluding her husband’s marital rights. The title not coming from her husband-to her, it follows that whatever interest she takes is her statutory separate estate. — ■ Code of 1876, § 2705. But' the deed does not convey the entire estate to her. The habendum clause, and the power therewith connected, are in the following language: “ To
On February 6, 1885, Jost, the husband, without the concnrrence of his wife, executed a lease of the premises to Chandler Brothers, for a term of five years, to commence October 1, 1885, and to terminate October 1, 1890. The lease recites advance payment of the rent'for the entire term. The present suit was instituted May 19, 18J36, and is a statuatory real action to recover possession of the premises. The defense was rested on the want of power in the husband to make the lease, and the trial court so ruled. This is the only question the record presents.
Under the very many rulings of this court, upon what is known as the woman’s law, it must be confessed that this question is not free from difficulty. The property is the separate estate of the wife, and, in the absence of power conferred by the deed, may be sold only by the husband and wife, and conveyed by their joint conveyance. — Code of 1876, §§ 2705, 2707. Yet, such property vests in the husband as trustee, who has the power to manage and control the same. So }ong as the trust continues he can, without the consent of the wife, manage and control the property, and receive and administer its income and profits, without liability to account therefor. Yet such income and profits are not his property, for they are not liable to his debts. He receives them in trust for the support and maintenance of the family; an imperfect obligation, it is true; for the law withholds all coercive methods for compelling its faithful administration. Yet, it is so far a duty as that its violation is a sufficient cause for his removal from the trust. These principles have been so often asserted that it would seem unnecessary to cite the authorities in support of them. Lee v. Tannenbaum, 62 Ala. 501.
What is implied in the power conferred to manage and control? Does it authorize the granting of a lease ? Some property is only made productive by being let to rent; some
We would not be understood as deciding that the husband, without the concurrence of the wife, can make no valid letting of the wife’s lands, held as statutory separate estate. Letting lands or tenements for a year is not required to be in writing, and is frequently done through agents, having no written authority therefor. We think the husband is clothed with this power and authority over the wife’s statutory separate estate, so long as he remains her trustee. His right to receive and administer the rent will depend on his continuing to be trustee until the rent matures.— Williamson v. Baker, 78 Ala. 590. When, however, the lease is for a longer term than one year, it becomes a species of sale required to be in writing, and the wife must unite in the lease to make it valid.
Notwithstanding the lease in this case was invalid for the term expressed, it was nevertheless binding and effective for one year - namely, from October, 1885, to October, 1886. It was valid, however, only to the extent of Mrs. Jost’s undivided interest. To the extent of that interest plaintiffs were entitled to recover when the suit was*"brought, for the first year of the lease had not then expired. It has since expired, and there can now be no recovery of the premises. The extent of plaintiffs’ rights is the recovery of mesne profits for the term they were wrongfully excluded from the possession of Mrs. Jost’s undivided interest. The charge of the court precluded all recovery, and is not consistent with our ruling.
B.eversed and remanded.