130 Ala. 444 | Ala. | 1900
The controlling question 'in the case is, whether the lease of the lands mentioned in the bill, by G. J. Davis, in the name of Mrs. Morphew, under the power from her to him, executed without the consent and concurrence of her husband expressed in writing, was a valid conveyance by lease of said lands or not.
At the time of the execution of said lease, section 2346 of the Code of 1886 was of force, which provided, that “the wife has full legal capacity to contract in writing as if she were sole, with the assent and concurrence of her husband expressed in writing,” but by section 2348 of that Code, it was provided, — as now by section 2528 of the Code of 1896, — that “the wife, if. the husband be of sound mind, and has not abandoned her, or be not a non-resident of the State, or be not imprisoned under a conviction for crime for a period exceeding two years,
The bill shows, that the wife, Mrs. Morphew, owned the lands in question; that she and her husband lived together as husband and wife, in the State of Arkansas, at the time she executed said power of attorney, and the lease under it, and that her husband did not join in the execution of said power, nor in the lease executed by the attorney in fact to said Tune and Scott, under whom defendants claim.
It is insisted for complainant that the exception of the non-residence of the husband, applies only to cases where the wife is a resident and the husband is a nonresident of the State. On the other hand, the construction is urged and relied on, that if both the husband and wife are non-residents of this State, as in the present case, the wife may alienate her lands, as if she were sole.
It is a settled general rule, that a woman acquires, at marriage, the domicile of her husband, and her domicile continues to be the same as his, and changes with his, throughout the marriage. An exception to this rule prevails, as is held, to the extent, that the Avife must be alloAved, for the purpose of obtaining a divorce, to acquire a separate domicile in the State in Avhich she is actually living >at the time she is deserted by her husband.—Hanberry v. Hanberry, 29 Ala. 719; 5 Am. & Eng. Encyc. Law (1st ed.), 868.
The said lease contract 'conveyed to the grantees therein, not only all the coal under the lands described, but, also, during the term of the lease, — 18 years from its date, — the right of Avar on the surface of said lands for the purpose of building or making railroads or Avagon roads, and to all the timber and water necessary to successfully mine and remoA'e 'said coal. The complaint is made, that defendants are hauling their coal AA’hen mined, over lands of complainant adjoining the lands covered by said lease, and prays that defendants be enjoined from so doing. If this is true, the complainant Avould have no right, on this ground, alone, to maintain the bill to prevent such a trespass. The law furnisher him an adequate remedy for such a grievance.
It folloAVS, the injunction Avas improperly perpetuated. The decree beloAv Avill be reversed, and one Avill be here rendered dissolving the injunction and dismissing the bill.
Reversed and rendered.