51 Ala. 163 | Ala. | 1874
This is a proceeding, under our statute, to condemn the separate estate of the wife to sale for the payment of a judgment against the husband, for articles of comfort and support of the household, furnished on contract with the husband alone. The bill of exceptions shows, that the articles supplied consisted of “ window-sashes, blinds, doors, ventilators, and window-glass.” These articles were purchased by Henry Lobman, the husband of Mrs. Theresa Lobman, and used to complete a house on Mrs. Lobman’s lot in the city of Montgomery, which belonged to her as her statutory separate estate. There was a judgment against the husband, who was sued alone, for the value of the articles thus furnished ; on which judgment an execution was regularly issued, and returned “ Not satisfied.” After this, a motion was made against Mrs. Lobman, the wife, for an order of sale of her statutory separate estate, for the payment of this judgment against her husband. The judgment was for $237.35 debt, and for $21.25 costs. The order of sale was granted by the court below, and Mrs. Lobman brings the case here by appeal; and here she assigns certain charges of the court below, and the judgment rendered on the order for the sale of her property, as errors.
The evidence shows that a house and lot in the city of Montgomery, worth a little above $3,000, was about all the property owned by the wife, and her husband was insolvent. The court charged the jury, in effect, that the materials furnished the husband by the appellee, for use on the house on Mrs. Lob-man’s lot, were articles of comfort and support of the house
The important statute, under which this proceeding is inaugurated, is for the protection and preservation of the wife’s estate. This purpose would be defeated, if the construction given to this act by the learned judge in the court below was allowed to stand. The husband is the wife’s trustee of her statutory separate estate; and generally, such trustees are not permitted to dispose of the corpus of her property, without the aid of some court, in which the wife could be protected against improvident, and, in a stricter sense, unnecessary expenditures, which imperilled the whole. In a certain sense, the wife is in a state of pupilage to the husband. He is her guardian. In such a case as this, a guardian would not be permitted, without the order of some competent tribunal, to waste the body of the wife’s estate. Rev. Code, § 2433; also Esk
The judgment of the court below is reversed, and tbis court, proceeding to render tbe judgment that tbe court below should bave rendered, doth order, adjudge, and decree, that tbe application in tbis case be dismissed out of tbis court and tbe court below, at tbe cost of tbe appellee, said A. M. Kennedy. Rev. Code, § 3502.