King v. Bolling

75 Ala. 306 | Ala. | 1883

BKICKELL, C. J.

The material and, in fact, the only question raised upon the record is the validity of the decree of the court of chancery, rendered on the 10th of November, 1874, relieving the appellant from the disabilities of coverture (in the language of the decree), “so far as to vest her with the right to buy, sell, hold and convey real and personal property, and sue and be sued as a feme sole, as provided by act approved April 15th, 1873.” The act referred to, and which constitutes the sole authority for the decree, and the proceedings upon which it is founded, in the first and only section which need be noticed, reads : “That the several courts of chancery of this State are hereby authorized and empowered to relieve all married women from the disabilities of coverture, so far as to invest them with the right to buy and sell, hold or convey real or personal property, and to sue and be sued as femes sole, in the following named cases : Eirst, whenever the wife by her next friend shall file her petition in such chancery court, alleging her wish to become a feme sole, for the purpose and to the extent herein above stated, and the husband shall in writing consent thea*eto. Second, whenever the chancery court, upon such petition filed and proof taken, shall be of the opinion that the prayer of the petition should be granted.” The statute contemplates two classes of cases in which the court should exercise the power or jurisdiction conferred ; the first, when the consent in writing of the husband attended or accompanied the petition, rendering all proof unnecessary ; the second, the rendition of the decree without or against the consent of the husband, if, upon proof taken, the court was of opinion the prayer of the petition should be granted. The presence or the absence of the consent in writing of the husband constitutes the distinction between the two classes of cases. In either class of cases, the indispensable element of jurisdiction is the petition of the wife, alleging her wish to become a feme sole, so far as the statute authorizes the court so to decree and declare her. The wife must be the actor; there is no power in the court to proceed against her in invitwm, compelling her to a change of her legal status, and her petition must affirm or declare her wish, or her desire, or request, that the rights and benefits of the statute be extended to her. This element of jurisdiction must affirmatively appear on the face of the proceedings, or they will be coram non j-udiee. It is not essential that the words of the statute should be strictly pursued, or that any particular words or phrases should be employed. A formal, technical allegation, as in a complaint or declaration in a court of law, or in a bill in equity, that it is the wish of the wife to be relieved of the disabilities of coverture, is not essential to the exercise of jurisdiction. The statement or affirmation in any terms, clearly importing her desire to avail herself of the statute, is sufficient. The existence of the wish is not a fact to be proved, nor is it a fact which can be drawn into controversy ; the petition expressing it, in which the wife is the actor, is of itself conclusive, and, when the proceedings have ripened into a decree, which has been acted-upon, and which is assailed collaterally, there can be no narrow'interpretation of the words of the petition, nor a technical construction, measured by strict rules of pleading, of its several parts. The only questions which are then open, is the power of the court, or of fraud upon husband or wife. And if the petition admits equally of two constructions, that construction must be adopted, which will support, rather than that which will nullify the decree.—King v. Kent, 29 Ala. 542; Wright v. Ware, 50 Ala. 549.

The petition is brief, averring the residence of Mrs. King, her coverture, the name and citizenship of her husband, and that she was the owner of property, real and personal. Kefer-ring to the act of the General Assembly, the petition then proceeds to “ ask and pray,” that she be declared a free-dealer “ with the right to buy and sell, hold and convey real or personal property, to sue and be sued as feme sole, as provided by an act of the General Assembly,” etc. This is surely a substan-tia], if not a literal compliance with the requirements of the statute. Ashing mid praying, is certainly an expression of her wish, her desire, that she be relieved of the disabilities of cov-erture. There is no other sense in which these words can be taken and interpreted ; to say that they were not the words employed in the statute is not an answer. The statute deals with things not words; with matters of substance, not with forms or formulas. That the prayer is, the wife may be declared a free-dealer, does not indicate that she sought the exercise of a power with which the court was not invested ; the sense in which the term is used, the extent and purposes for which she wished to be made a free-dealer, is apparent from the subsequent words, and these are the words of the statute. The term “ free-dealer,” is rather peculiar to our statutes and decisions, and is always relative; its precise meaning and signification are derived from the statute to which it refers, the matter with which it is connected, or the subject to which it has relation.. The syllabus, or abstract, appended to the section of the Code which authorizes chancellors to relieve married women of the disabilities of coverture, reads : “ Court of chancery may declare married women tree-dealers in term time or vacation.” Yet, the term “free-dealer” is not employed in a general sense, as the equivalent of feme sole ; it is employed in relation to the body of the section, and that clearly defines it. The same term, found in the written consent of the husband accompanying the petition of the wife, must be accepted in the same sense in which it is used in the petition, and, so taking it, as it was taken by the chancellor, and as it was intended it should be taken, it is the consent required by the statute. We are of opinion the decree is valid ; that there was not a want of jurisdiction in the court, to render it. And being valid, tliat it conferred upon Mrs. Ring capacity to execute the conveyance now impeached, is not denied.-

Let the decree be affirmed.