Irons v. Reynolds, 28 Ala. 305

Irons v. Reynolds

28 Ala. 305 | Ala. | 1856

CHILTON, C. J.

Without stopping to inquire whether the points attempted to be raised upon the bill of exceptions are properly raised by it, it is sufficient to observe, that the record presents the anomalous case of a proceeding by a married woman, inker own name, in a court of law, to try the right to property in a slave, which her husband purchased and took a bill of sale for in his name, but with money which was the proceeds of property secured by an antenuptial contract entered into between them in the State of Ohio; the husband having delivered the slave to his wife, and having recognized her right to the same. Whether, with respect to property which the statute secures to the separate use of married women, they can thus become parties in a court of law, it is not necessary that we should now inquire; see, however, Gerald v. McKenzie, 27 Ala. We know of no statute authorizing her thus to litigate in her own name, and try the right to property situated as this is, in a court of law. No one would contend, for a moment, that the common law admits of such procedure. The law requires that she must put in her claim by a trustee, who has the legal title, and who therefore may well be a party in a court of law. If she has no trustee, or, having one, he refuses to put in a claim aud thus to protect her rights, the court of equity will afford her ample redress, for the reason that at law she is remediless. — Bridges & Co. v. Phillips, 25 Ala. Rep. 136 ; Love v. Graham, ib. 187-193; Crabb’s Adm’r v. Thomas, ib. 216.

*309It is clear from the facts stated in the bill of exceptions, and about which there was no controversy, that, at Idw, the husband of the appellant was the owner of the property in controversy. He purchased and took the bill of sale to himself. His conduct, acts, or declarations, could not vest the legal interest in his wife, nor invest her with a capacity to become a suitor in a court of law to protect it. Equity can look to such transactions; but the courts of law, pending'the existence of the relation of husband and wife, cannot regard them. — Gamble v. Gamble, 11 Ala. Rep. 966; Machen v. Machen, 15 ib. 373 ; Frierson v. Frierson, 21 ib. 555 ; Jenkins v. McConico, 26 ib. 242.

Such being our view of this case, it follows that the court did right in charging that the property was subject to the plaintiff’s execution against the husband, and in refusing the charges asked by the counsel for the claimant.

Let the judgment be affirmed.