Cook v. Meyer Bros.
73 Ala. 580
Ala.
1883
Check Treatment
BRICKELL, C. J.

— There are numerous exceptions reserved to instructions given the jury, and the refusal of instructions requested, on the trial in the city court, which it is not necessary to consider separately. There is no material conflict in the evidence, and the question decisive of the case is, whether a decree of the chancellor, rendered under the statute (Code of 1876, § 2731), relieving a married woman of the disabilities of coverture as to her státutory and other separate, estates, so far as to invest - her with the right “ to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as a feme sole,” operates proprio vigore to remove the husband *583from the trusteeship of her statutory separate estate, disentitling him to take its rents, income a.nd profits, and entitling her to receive or to sue for them. This question we are constrained to answ'er negatively, and the consequence is, that the appellant was without title to the cotton upon which the attachment was issued.

It is a recognized rule of statutory construction, that a statute in modification or derogation of the common law will not be presumed to alter it, further than is expressly declared. The presumption is, that the language and terms of the statute import the alteration or change it was designed to effect, and their operation will not be enlarged by construction or intendment. — 1 Kent, 464; Sedgwick on Stat. & Con. Law, 267, n. b. The rule is also settled, that the repeal of statutes by implication is not favored; and a subsequent statute, if not directly repugnant to a prior statute, will not operate a repeal of the latter. If there be a discrepancy, such exposition should be made, if practicable, that both may stand together; but if a direct repugnancy is proved to exist, to. the extent of such repugnancy., the later statute must prevail..— Wyman v. Campbell, 6 Port. 219; George v. Skeates, 19 Ala. 738; Rawls v. Kennedy, 23 Ala. 240; Pearce v. Bank of Mobile, 33 Ala. 693.

The rule of construction to which we have first referred, has been applied to the statutes creating and defining the separate estates of married women; they have not been construed as enlarging the capacity of the wife to contract, or to take, hold, or administer property, further than the words, fairly and reasonably construed according to their natural import, expressly declare. — Gibson v. Marquis, 29 Ala. 668; Canty v. Sanderford, 37 Ala. 91; Alexander v. Saulsbury Ib. 375; Warfield v. Ravesies, 38 Ala. 518; Reel v. Overall, 39 Ala. 138. And it has also been applied to private statutes, changing the common law status of a married woman, enabling her to hold and acquire property, in exclusion of the marital rights of the husband.. — Hatton v. Wier, 19 Ala. 127; Perryman v. Greer, 39 Ala. 133. The statutes are regarded as enabling the wife; as removing the disability imposed by the common law upon her, as well as disabling the husband, or depriving him of rights which at common law resulted from the marriage. The ability conferred upon the wife is not general, but is exceptional ; and the common law prevails, save so far as it is expressly or by necessary implication changed by the statute. The contracts of the wife which are valid must be of the precise character expressed in the statute, and made in the precise manner the statute prescribes; and rights asserted by her must *584be derived from the statute, and asserted by the remedies the statutes appoint.

The statutes creating and defining the separate estate of the wife declare that the property “vests in the husband as trustee, who has the right to manage and control the same, and is not' required to account with the wife, her heirs, or legal representatives, for the rents income and profits thereof; but such rents, income and profits are not subject to the payment of the debts of the husband.” — Code of 1876, §2706. It is as trastee, freed from liability to account, the husband takes “the rents, income and profits.” When the statute in its entirety is read, it is manifest a gift of them to him was not intended. The duty and liability of maintaining the wife and the children, constituting the family of which lie is the head, remain as devolved upon him by the common law; and if he has the ability, he is bound to its discharge, ■whatever may be the character or value of the estate of the wife.' It is in the conjoined relation of husband, the head of the family, and of trustee of ihe property of the wife, that he takes the rents and profits, that he may discharge the common law duty of maintaining wife and children, in keeping with their social position, and the degree of the separate estate. Taking them in their conjoined relation, he is relieved from liability to account, because such liability would involve an invasion of his authority as husband to i’egulate and cont2’ol his do2nestic expenditures, provoking,' possibly, litigation that would mar and destroy the peace of the family. — Eskridge v. Ditmars, 51 Ala. 245; Boaz v. Boaz, 36 Ala. 334; Patterson v. Flanagan, 37 Ala. 513; Lee v. Tannenbaum, 62 Ala. 501. The wife can sue alone at law or in equity for the recovery of the corpus of her estate ; but she can not sue for the recove2’y of its 'rents, income and p2’ofits, nor can she 2'ecover them, where the recovery is 2ne2-ely incidental to a recovery of the corpus. The husband alone, while he is in the relation of trustee, can recover them ; and if by his own act he has estopped himself from asserting title, there can be no recovery of them.— Whitman v. Abernathy, 33 Ala. 160; Ryall v. Prince, 71 Ala. 66.

The statute conferring upon chancellors jurisdiction to relieve 2narried women from the disabilities of coverture is 2iot gene2’al in its terms — it is limited and defined. All the disabilities covertm’e Í2nposes are not rmuoved. The capacity of a feme sole, is not conferred. The extent to which the 2narried woman can be relieved, is 02ily as to the statutory or other separate estate; and as to this estate, in the words of the statute, it is only so far “as to invest her with power to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as a feme soleP It has been he2’etofore *585said of this statute, that, in' the expressions it employs, there was much of legislative caution exercised; from the married woman relieved by the decree of the chancellor of the disabilities of coverture, a general capacity to contract is carefully withheld; the only contracts she is endowed with capacity to make, are such as touch and concern property.-Ashford v. Watkins, 70 Ala. 156; Holt v. Agnew, 67 Ala. 360; Dreyfus v. Wolffe, 65 Ala. 496. In the latter case it was said of the statute: “It is entirely enabling in its purpose. It does not in general terms constitute her a free-dealer, or confer on her all the powers of a feme sole. It specifies the extent to which such powers are conferred. This it does ex industria, for it is twice repeated in the statute.” There are no words found in the statute, indicative of an intent to disable the husband, or to displace any right conferred upon him by pre-existing statutes, or to relieve him from the duties such statutes may devolve. If such was the operation of the statute, the result would be produced, because the specific powers conferred upon the wife are inharmonious, inconsistent with these rights and •duties; in other words, it would be the result of implication, not of express legislative. enactment. 'Ordinarily, when a statute is not in revision, or in substitution of former statutes; when it is merely cumulative legislation, it is not too much to say, that if the repeal of former statutes is contemplated, express language is used. For this and other obvious reasons, the general rule is, that the repeal of statutes by implication is not favored; and that if two statutes relating to the same subject-matter can be reconciled by fair and just construction, so that they will operate harmoniously, the repeal of the former by the latter will not be implied.

This and other statutes relating to the capacity of married women to take, hold, and administer property, form parts of a system, intended to supersede the common law upon the same subject. The policy pervading the system is not the disruption of the marital relation, nor is it the removal of responsibility, nor the displacement of the duty and authority of the husband as the head of the family. In that relation, with its responsibilites, duties .and authority, it is intended he shall remain. ITis marital rights aré lessened only so far as to deprive him of the capacity to take the property of the wife, as an incident of marriage. It would not be consistent with this policy, if the statute before us were construed as operating to remove him from the trusteeship of the wife’s statutory estate, depriving him of the right to the rents, income and profits, which he takes in the conjoined relation of husband and trustee, and takes, that he may the better discharge .the duty of supporting his wife and children, from which it could not be said the stat-*586rite intends he shall be relieved. Endowing the wife with enlarged capacity in reference to her statutory or other separate estate, and with the capacity of suit as to transactions growing out of her contracts in reference to such property, is the plain purpose of the statute. An enlargement of the capacity of the wife may render less valuable, and may result in impairing or defeating the right of the husband to the rents, income and profits of her statutory estate; but while the statute remains, the trusteeship of the husband, and the consequent right to the rents, income and profits, are not inconsistent or repugnant to the capacity of the wife. Upon fair and just construction, the statute conferring upon him the right can be reconciled with the later statute conferring enlarged capacity upon the wife.

The case of Halliday v. Jones, 57 Ala. 525, is not inconsistent with these views. The special.statute which was then of consideration (Pam. Acts 1869-70, p. 161), is very broad in its terms. The married woman is declared a “free-dealer,” capacity of suit is conferred in unlimited terms, and it is declared she has the right “to manage her own estate.” These words import that she was to be taken and considered as a feme sole, and as such to take her property under her own control and direction, in exclusion of her husband, and of interference from any som’ce. No such words are introduced into the statute now under consideration, nor is their equivalent. All its words indicate only an enlargement of the capacity of the wife to acquire property, though her statutory or other separate estate, and to dispose of it,, without converting her into a free-dealer, the term of frequent repetition in special statutes enacted to relieve a married woman from all disabilities of contracting and of administering property; the equivalent in that respect of a feme sole.

The decree of-the chancellor, not displacing the trusteeship of the husband, and, of consequence, not entitling the appellant to take the rents, income and profits of her statutory separate estate, she was without title, legal or equitable, to the cotton claimed, and there was no error in the rulings of the city court prejudicial to her.

Affirmed.