71 Ala. 469 | Ala. | 1882
The note sued on by the appellant, Gayle, was given for the rent of land belonging to his wife’s statutory separate estate. It was dated January 22d, 1872, and made payable to the plaintiff on the first of December following after date. The wife, Mrs. Gayle, hacl died in December, 1871, prior to the date of the execution of the note. The plaintiff filed his petition in the United States District Court in March, 1872, and was duly adjudged a bankrupt under the provisions of the Bankrupt Law of 1867. This action was instituted in June, 1879. There is evidence of one or more payments being made on the note, so as to prevent the bar of the statute of limitations from being perfected.
The main question presented for consideration is, whether, under this state of facts, the action will properly’ lie in the name of the plaintiff, his bankruptcy being 'Set up by special plea for defense.
On the adjudication of plaintiff as a bankrupt, he became civiUter mortuus. He no longer possessed the privilege to enter the courts as a litigant, so as to enforce his individual and personal property rights in his own name, at least so far as concerned the past. Upon the appointment of an assignee by the bankrupt court, and the execution and delivery of an assignment to him, all the property rights of the bankrupt, except such as were specially excepted from the operation of the act, vested in the assignee, with the exclusive right to sue for the same.—Bankrupt Law, 1867, U. S. Rev. St. §§5047, 5054;,
The only point, then, seems to be, as to the interest which the plaintiff owned in the rents of his deceased wife’s property, which are here sued for, and evidenced by the note in question. It is insisted that this is a trust, and does not pass to the assignee. If the wife were living, there could then be little or no doubt of the correctness of the position. The rents and profits of the wife’s statutory separate estate, under our laws, only pass to the husband as her trustee, for the support of the family, and they can not be subjected to the payment of the debts of the husband.—Lee v. Tannenbaum, 62 Ala. 501; Code, 1876, § 2706. Such a claim would be unaffected by the bankrupt law, which provides that “no property held by the bankrupt in trust shall pass by the assignment.” — U. S. Rev. Stat. 5053; Bump on Bank. (8th Ed.) 539.
But no trust of any kind exists here. The decease of the wife put an end to the trust, and created a new right in the husband. The Code provides, that where a married woman, having a separate estate, dies intestate, as the presumption must be here in the absence of any proof of a will, the husband, if living, becomes entitled to the “use of the realty during his life.”— Code, 1876, § 2714. The plaintiff, therefore, owned a life estate in the lands in question, and the rents became absolutely his after the death of Mrs. Gayle, which occurred in December, 1871. This view is conclusive of the question against the appellant.
It is insisted that the pleadings show that the rents in question accrued prior to Mrs. Gayle’s death, and that this fact is admitted by the defendants’ demurrer to the second replication of the plaintiff. We do not so construe the replication, taking its averments, according to a well settled rule, most strongly against the pleader. Even if these reñts were for the year 1871, there is nothing to show that they fell.due before the wife’s decease; and the rule is, that rent, not yet due, is not a chose m action, but is a part of the realty, and passes with the reversion of the freehold to those entitled, as a mere incident. Westmoreland v. Foster, 60 Ala. 448, 455; English v. Key, 39 Ala. 113; Willard on Real Est. & Conv. 218; Wright v. Williams, 5 Cow. (N. Y.) 501; Van Wicklen v. Paulson. 14 Barb. 654.
The note in suit can not be claimed as property exempted for the use of the plaintiff, under the operation of the bankrupt law. The pleadings fail to show that he asserted his claim on the filing of his petition, and had the note set aside, and certified as exempt, in accordance with the general orders and provisions of the bankrupt act. This claim was within the exclu
We find no error in the rulings of the City Court, and the judgment is affirmed.
