72 Ala. 233 | Ala. | 1882
Amending a former statute, the legislature, by act approved February 10, 1875 (Pamph. Acts, 194; Code of 1876, § 2731), enacted: “That the several chancellors in this State, either in term time or in vacation, are hereby authorized and empowered to relieve married women of the disabilities of coverture, as to their statutory and other separate estates, so far as to invest them with the right to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as femmes sole, whenever the wife, by her next friend, shall file her petition in the Court of Chancery for the district in which she resides, praying that she be decreed, for the purposes aforesaid, to be declared a femme sole.”
Interpreting this statute by its own language, we find the purpose of the enactment was, to relieve married women of the disabilities of coverture; not to relieve them of such disabilities in all respects, but only so far as those'disabilities affect their “ statutory and other separate estates.” And as to separate estates, the relief granted to them is not unlimited. They are not made free-dealers. The relief from marital disabilities is, and can extend only, “so far as to invest them with the right to buy, sell, hold, convey and mortgage real and personal prop-perty, and to sue and be sued as femmes sole.” None of these rights or ¡sowers could a married woman exercise at common law; nor, under our statutes, known as the “ woman’s law,” could she exercise any of them, except to sue and be sued in her own name; and even that right was confined to her statutory separate estate. She could hold property, real and personal, but it vested in her husband as her trustee. She could could neither buy, sell, nor convey, without the concurring assent and act of her husband. The statute empowered her, when relieved, to do these enumerated acts as a femme sole, without the concurrence, and against the consent of her husband.
In Dreyfus v. Wolffe, 65 Ala. 496, we were required to pronounce on one phase of this statute. "We said: “It can not be successfully gainsaid, that as far as the statute extends, Mrs. Dreyfus is clothed with all the civil powers of a femme sole, and her coverture opposes no obstacle to the assertion of rights and liabilities, whether made by her or against her. The rulings
We have seen no reason for departing from this interpretation of the statute. So, in Ashford v. Watkins, at the last, term (70 Ala. 156), speaking of this statute, we said, it “is a delegation to the chancellor, not to the Chancery Court, of a power that prior to its enactment the General Assembly had reserved to itself, not delegating it to any judicial officer. In the absence of the statute, the chancellor could not exercise the power. . . . The power conferred is not the general, prerogative power the General Assembly had been accustomed to exercise, of removing entirely the disabilities of coverture, or of removing only partially, or of investing them with capacity to make particular contracts, or to make particular dispositions of property. The power is precisely defined, and is, ‘ to relieve married women of the disabilities of coverture, as to their statutory and other separate estates, so far as to invest them with the right to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as femmes sole.’ This is the power, and there seems to have been much of legislative caution in the expression. A general capacity to contract is carefully withheld. The only contracts authorized, are such as touch and concern property.” There is then a reference to, and an approval of the doctrine declared in Dreyfus v. Wolffe, 65 Ala. 496.
The statute under discussion is certainly enabling. It creates a new jurisdiction, not before exercised by the Chancery Court, and authorizes the chancellor to exercise that jurisdiction, “either in term time or in vacation.” It is a mere statutory power, outside of the general routine of judicial proceedings; and, to be valid, the statute must be strictly conformed to. What are the essentials to put this statutory jurisdiction into exercise? The petitioner must be a married woman. The statute provides for none other. She must have an estate, for the powers of the chancellor can be invoked and exercised only in reference to her estate. The estate must be separate, either statutory or otherwise. Such is the statute, and
■ The petition found in these records, under which it is claimed Mrs. Cohen was relieved of the disabilities of coverture, is fatally defective in substance, and did not put this statutory power of the chancellor into exercise. It entirely omits to aver she had any estate of any kind, statutory or otherwise; and thus fails to show she was entitled to the relief the statute offers. A failure to make a jurisdictional averment, in statutory proceedings like this, is equivalent to an admission that there is no fact on which to base such averment. The chancellor never having acquired jurisdiction, the whole proceeding was and is void.—Ashford v. Watkins, supra; Tyson v. Brown, 64 Ala. 244; Wyman v. Campbell, 6 Por. 219; 2 Brick. Digest, 464, §§ 1. 6.
It results from what we have said above, that Mrs. Cohen never was empowered to enter into contracts of purchase, and her plea of coverture was a perfect defense to these actions.
Other very grave questions, arising under the act of February 10th, 1875, have been argued before us. What we have said above renders their decision unnecessary.
Reversed and remanded.