Loeb & Brother v. Manasses
78 Ala. 555
Ala.
1885
Check Treatment
CLOPTON, J.

The following propositions, which have been settled by our decisions, have become rules of property, and ought not now to be disturbed; though, if original questions, we might come to a different conclusion in respect to some of them:

1. Where the husband becomes indebted to the wife, by reason of having converted to his own use her separate estate, he may convey property directly to her for the purpose of paying or securing the debt; and the wife will be protected in her title thus acquired, if bona fide, against the husband’s other creditors. — Northington v. Faber, 52 Ala. 45; Copeland v. Kehoe, 57 Ala. 246.

2. Such conveyance is inoperative to vest the legal title in the wife, and for this purpose is void at common law; but it operates to create in her only an equitable estate, which a court of equity will uphold, even to divesting the legal title out of the husband, when necessary for the protection of the wife’s interest, — McMillan v. Peacock, 57 Ala. 127; Gluck v. Cox, 75 Ala. 310.

3. Such conveyance being inoperative to vest the legal title, but creating an equitable estate, is in the nature of a declaration of use, by which the wife is clothed with the equitable title, and the legal title is retained by the husband, which he holds in trust for her. — Powe v. McLeod, 76 Ala. 418.

The corollary from these propositions is, that, as the conveyance does not operate to pass the legal title, it is not available to support a claim in an action at law; but such action, when the right of-recovery is founded on the legal title, may be instituted in the name of the husband as trustee. — McIlwain v. Vaughan, 76 Ala. 489 ; Meyer v. Sultzbacher, 75 Ala. 423. But, when the recovery rests wholly on upholding and enforcing the equitable title or claim of the wife, resort must be had to a court of equity, which alone is competent to give effect to such conveyances. — Butler v. Merchants' Ins. Co., 8 Ala. 146.

■ In a statutory trial of the right of property, only the legal title or claim is in issue; and the equitable rights can not be regarded, or adjudicated. — Block v. Maas, 65 Ala. 211. Where the execution is against the husband, and levied upon personal property, which he has conveyed directly to the wife, such conveyance being void at common law, the property will be held in a court of law to be his, and subject to the execution. Such *558court will not take cognizance of the estate of the wife, which is the mere creature of equity, which*alone “can look to such transactions; but the courts of law, pending the existence of the relation of husband and wife, can not regard them. — Irons v. Reynolds, 28 Ala. 305. In such case, if the husband interposes the claim in his name as trustee for the wife, the court at law, looking alone at the legal title, finds it in the defendant in execution, and the claim can not prevail. — King v. Hill, 20 Ala. 133. The expression in Meyer v. Sultzbacher, supra, was not necessary to the decision of the case, and can not be considered as having established a rule of practice.

Reversed and remanded.