| Ala. | Jan 15, 1858
— The act of March 1,1848, section 5 ; the act of February 13, 1850, section 7, and section 1987 of the Code, are not precisely alike in all their features. The act of 1848 declares, “that for all articles of family supply, or used in the family, the husband shall be severally, or the husband and wife jointly, liable and suable at law.” — Pamph. Acts, 79. The language of the act of 1850 is, “ that for all articles of family supply, or used in the family, which are suitable to the estate and condition in' life of the family of such husband and wife, and for which the husband would by the common law be liable, the husband shall be severally, and the husband and wife jointly, liable and suable at law.” — Pamph. Acts, 65. The Code (§ 1987) enacts, that “for all contracts, for articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law, the separate estate of the wife is liable; to be enforced by action at law against the husband alone, or against the husband and wife jointly.”
We, in this opinion, propose to point out only two differences in the above enactments. First, the act of 1848 omits the qualifying clause, “for which the husband would be responsible at common law,” while each of the other statutes contains it in substance. Second, both the acts
"Without undertaking to point out, to a greater extent than is above done, the differences in the extent of liability under the several statutes — viz., the act of 1848, the act of 1850, and the Code — it is manifest that each successive statute, if it render a different construction necessary, rather limits the liability of the wife!s separate estate, while neither imposes any new burden not given by the former.
The articles which make up the account which is the subject of the present suit, were all purchased in 1856, after the Code went into operation. It becomes, then, necessary that we should construe section 1997 of the Code, which reads as follows: “ The provisions of this article take effect, and are operative, on the estates of all married women who have been married, or have received property, by descent, gift or otherwise, since the first of March one thousand eight hundred and forty-eight.” Under these facts, we hold, that the liability of Mrs. Dur-den’s separate estate, in an action at law, must be governed by section 1987 of the Code, notwithstanding her estate accrued to her under the act of 1850. — Weems v. Bryan, 21 Ala. 805.
In Cunningham v. Fontaine, 25 Ala. 644" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/cunningham-v-fontaine-6505437?utm_source=webapp" opinion_id="6505437">25 Ala. 644, we considered the question of the wife’s liability at law under the act of 1850. In Daniels v. Sprague and Wife, at the present term, we considered the same question under the provisions of the Code. See, also, Henry v. Hickman, 22 Ala. 685" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/henry-v-hickman-6505079?utm_source=webapp" opinion_id="6505079">22 Ala. 685. In neither of these cases did we undertake to define or determine what contracts, or what description of articles of family supply, or of comfort and support of the household, can become a charge upon the wife or her separate estate,
The Code, in defining the class of articles for which the wife’s separate estate is liable in an action at law, contains three qualifying clauses: 1st, they must be articles of comfort and support of the household; 2d, they must be suitable to the degree and condition in life of the family3d, they must be articles “ for which the husband would be responsible at common law.” We think each of these qualifying clauses must have some operation, and that, collectively, they are indicative of the vigilance with which the legislature intended to guard this species of property. Clauses 1 and 2 need no particular comment here. We regard clause 3 as the most significant and controlling. If we construe this language in its larger and more general sense, the result will be to subject the wife’s separate property to the payment of every valid contract the husband may make; because, upon every contract of his own, supported by a valuable consideration, he would be responsible at common law. This construction would defeat the entire object of the statutes. We can not for a moment believe the legislature had this intention.
Neither do we find any thing in the statutes which authorizes us to confine the liability of the separate estate to contracts entered into by the wife herself, or which renders the agency by which the contract is entered into a material inquiry, further than is implied in the rule hereinafter stated.
Having shown that the third qualifying clause is not to be construed in its larger sense, we must seek for it a more restricted meaning. We hold, that the intention of the legislature was, to render the wife’s separate property liable, in an action at law, for only such “articles of comfort and support of the household ” as the husband maybe ■chargeable with in invitum ; such necessaries for the maintenance and comfort of the family, as, in the absence of proper provision by him, his wife, or even a stranger, may supply to the family, and thereby fix a liability on him. We will not here undertake to lay down a definite and
Under the rule above declared, the separate estate of the wife can not be charged, in an action at law, for the wearing apparel of the husband, or any other article purchased for his individual or exclusive use. For articles which, in their nature, are used in common, and which are necessaries of the household in its collective capacity, the separate estate of the wife is chargeable. The fact that the husband participates in the use and enjoyment of the articles last mentioned, will not in the least diminish the liability of the wife’s separate estate.
The construction above given will operate no hardship, either upon the husband, or any one who trusts him. He has the rents, income and profits of his wife’s separate property, without liability to account for the same; and the law has given him no authority to charge the corpus of her estate, to a greater extent than is above expressed. Code, § 1983; Pickens v. Oliver, 29 Ala. 528" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/pickens-v-oliver-6505894?utm_source=webapp" opinion_id="6505894">29 Ala. 528.
It will be observed, that the question we are discussing, is the liability of a married woman’s separate estate in an action at law. Of course, she has power to charge it in equity, independent of our statutes.
Prom what we have said above, it necessarily results, that the judgment pronounced by the circuit court in this case must be reversed. "We deem it unnecessary to notice every point presented by .the record. A complaint which seeks to charge the separate estate of a married woman, in an action at law, should aver under which statute the liability is claimed; because, as we have shown, the statutes are somewhat different.
Whether the articles purchased are of the class which can be charged on the separate estate, is a question for the jury, under appropriate instructions.
The judgment of the circuit court is reversed, and the cause remanded.