61 Ala. 12 | Ala. | 1878
The liability of the wife’s statutory separate estate for articles of comfort and support of the household, suitable to the degree and condition in life of the family, does not arise from contract. It is defined and declared by the statute, and it is immaterial whether she or her husband is the active agent in procuring them. — Durden v. McWilliams, 31 Ala. 438. The liability of the husband on whom the law devolves the duty of maintaining the family, is not lessened, because of the liability of the statutory separate estate, and until his liability is fixed by a personal judgment; there can be no judgment condemning the estate'. The creditor has the right to enforce it by a joint suit against husband and wife, or having sued the husband to insolvency, on motion, a judgment may be rendered condemning the statutory separate estate to its satisfaction. Cunningham v. Fontaine, 25 Ala. 644. As the husband can not by mere contract create the liability on the statutory .separate estate — as it arises from the declaration of the law
The claim of the plaintiff' is for improvements made on the wife’s real estate under an employment of the husband— fencing, building a smoke-house, and carriage-house. These improvements may have contributed to the comfort of the family or household, and may have been suitable to their degree and condition in life. But there are no facts shown by the bill of exceptions which justify the conclusion that they were necessary to the support of the household. Contracts may be made by the husband, or by the wife, for things which are not unsuited to the station in life of the family, or the degree of the wife’s fortune, and which will promote the convenience and comfort of the husband and wife, and of those living under their roof, and legally dependent on them, which can not be enforced against the statutory separate estate. A carriage would add to the comfort, convenience and pleasure of the wife and her children, and her fortune and station in life may be such that she could justly expect that one should be furnished her by
’ The rulings of the Circuit Court were inconsistent with these views, and its judgment is reversed and the cause remanded.