Cook v. Cook

Nov 15, 1899
Reporters:
Before:
McClellan
McCLELLAN, C. J.

That a wife must sue alone for the recovery of her separate property is expressly provided by statute. — Code, § 2527. That she may sue her husband for the recovery of personal properly belonging •to her has been expressly decided. — Bruce v. Bruce, 95 Ala. 563. The right to sue her husband to recover from him possession of her realty rests upon the same statutory provision and the same principles declared in the case cited as to her personalty, and can no more be denied in respect of one class of property than in respect *585of the other. Nor is it of consequence that the land of which recovery is sought was at one time occupied by the husband and wife 'with their children as a homestead, nor that the husband and children still reside thereon, nor that the defendant at the time of trial is willing and all along has been for the wife to return to this homestead and occupy it jointly with him. He has no right to compel her to let him into joint possession or occupation of any of her land, nor any right to exclude her from the possession and occupation altogether, unless she assents to joint possession and occupation with him. There is no law to compel a wife to live with her husband on her land or on his. There is no- legal prohibition upon her separating from him and living apart. And having separated from him and left her home in his possession, she is entitled to recover it from him as if he were a stranger. To hold otherwise would be to give the husband rights and estates in the wife’s lands which our statutes not only do not provide for-but expressly provide against. This is the view taken by the trial court. Upon it the affirmative charge was properly given for the plaintiff, and the judgment must be affirmed.

Affirmed.