Jones v. Wilson

57 Ala. 122 | Ala. | 1876

MANNING, J.

The property in controversy in this suit —a house and lot — were of the statutory separate estate of the wife of appellee Wilson, defendant in the court below. By a mortgage trust deed made by the two in 1861, it was conveyed to a trustee, with power to sell it to pay a debt of ’ over $2,200, alleged in the deed to be due from Mrs. Wilson to Parker, Lake & Co., “for supplies furnished” by them, and as constituting a proper claim against her separate estate. She died intestate in 1864, leaving children and her husband surviving: and in December, 1866, the property was sold by the trustee, and bid off by Parker, Lake & Co. They having afterwards become bankrupt, their interest in it was sold by their assignee in bankruptcy, and bought by appellant, who brought his suit for the premises in the Circuit Court, against the surviving husband, Wilson.

At the trial, plaintiff introduced and proved the deeds showing title in Mrs. Wilson; the mortgage-trust-deed off’ her and her husband, the sale and conveyance under it to Parker, Lake & Co., their bankruptcy, and the sale and conveyance by their assignee under the bankrupt law, to-plaintiff; the death of Mrs. Wilson; the possession of appellee, with his children; and the value of such occupation.. Upon this evidence, appellant rested his right to recover.

The law securing to married women what is called their statutory separate estate, does not make them capable of' dealing in respect to it as if they were discovert. Both the management of such property by the husband as trustee,, and the mode in which it may be sold by the husband and wife jointly for investment, &c., are prescribed by statute. Except 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” — if, without authority from him, they were-in case of need furnished to his family — no contract can be-made, which will create a charge upon the wife’s statutory separate estate. Whether, in any case, a mortgage executed by her and her husband of such property, would be valid, we need not now inquire. Certainly such an incumbrance-on property previously belonging to her, if not arising out • of or connected with the contract or transaction by which the property was acquired, could not be created, unless for • “ articles of comfort and support ” of the kind above specihed. Even for them, if they were not when purchased by the husband, used in the family, this separate estate of the wife would not be liable.—Mitchell v. Dillard & Jones, (this term.)

Now, there is no evidence in this record that the trust-•deed under which appellant claims, was executed to secure payment of a sum due for any such articles. True, it is recited in it that the debt it provided for was the wife’s -debt, and that it was created for “ supplies furnishedbut it does not say that these supplies were “ articles of comfort and support of the household, suitable to the degree and -condition in life of the family.” True, also, it is recited that the debt constituted “ a proper claim against the separate estate of said Ann,” and that it was “bound for said -debt.” But whether this was so or not, is a question of law, dependent upon the facts; and sufficient facts are not shown either by the contents of the mortgage, or by • evidence outside of it, to establish any such claim. Hence, it is not made to appear that the deed was operative as a mortgage of the wife’s estate and title, if it were possible for her to create such an incumbrance, under an enactment which so far as it provides for a conveyance of her statutory separate estate, is held to be an enabling act.

But, it is insisted that if the trust deed did not convey .the wife’s estate in the premises, it was effectual to transfer the interest and right of the husband ; and that he being now by the death of his wife intestate, owner of the property during his life, (according to section 2379 of E. C.), and in possession, plaintiff is entitled to recover and have it from him. To support which claim, it is further insisted that the husband’s estate is, in substance, that of a tenant by curtesy, of which his possession under the statute, during his wife’s life, may be regarded as an extension backward ■to and beyond the time when the mortgage-trust-deed was made.

This can not be admitted. The main object of the statute law under consideration, was to abolish the marital rights ■conferred by the common law on the husband in the prop- ■ erty of the wife, and to make him instead a somewhat privileged trustee of it as her separate estate. During her life ■.the estate and title are in her. The interest in it which is cast by the law on the husband upon the death of his wife intestate, is like the estate by curtesy only in the particulars that it is in real property that belonged to the wife, and is a life-estate. It had before her death, nothing of the certainty of the estate of a tenant by curtesy. It did not vest during her life. It might have been prevented by her from ever vesting; and it was contingent on the husband’s not being removed from the trusteeship, as well as on the wife’s dying without leaving a will disposing of the property. — §§ 2378, 2379. In feet, it was a mere expectancy, like that of an heir-apparent during the life of the person whose estate he might inherit, and like it, is not conveyed by a deed made during the life-time of the owner from whom it is expected to come.

Nor does the trust-deed of Wilson and wife, through which appellant claims, operate by way of estoppel against Wilson. It contains no warranty of title, nor either of the words, “grant, bargain, sell,” which the statute declares shall have the effect of such a covenant. — B. C. § 1584. The only operative word is “convey.” The instrument, therefore, creates no bar to Wilson’s assertion of a subsequently acquired title in the land which it purported to convey.

Let the judgment of the Circuit Court be affirmed.