109 Ala. 109 | Ala. | 1895
At common law, marriage vested in the husband the title of the wife to all personal chattels, of which she had actual or legal possession; and to her real estate he gained a title only to the rents and profits during coverture, but the estate itself remained entire to the wife, after the death of her husband, or to her heirs, if she died before him, unless by the birth of a child, he became tenant for life by the courtesy. — 2 Brick. Dig. 71, 72, § § 36, 51. At common law the wife was generally incapable of entering into any valid contract, to bind either her person or property, and could not be sued at law in an action ex contractu; and, except as modified by statute, this disability continues to exist. — 2 Story Eq. Jur. § 1397; Reeve’s Dom. Relations, 138; 14 Am. & Eng. Ency. of law, 604; Davis v. Carroll, 71 Md. 570; Bank v Partee, 99 U. S. 332; 3 Brick. Dig. 545, § § 52, 53. This rule of the common law has been modified in this State, and “The wife has full legal ca
One of the exceptions to the common law rule to which we have referred, disabling the wife to contract, was, that if the husband abandoned her, and departed into another country, without the intention of returning, the law conferred on her the capacity of contracting and suing as though she were sole. — Arthur v. Broadnax, 3 Ala. 357; James v. Stewart, 9 Ala. 855; Mead v. Hughes, 15 Ala. 148; Roland v. Logan, 18 Ala. 307. Or, when the husband was civilly dead, outlawed, banished, imprisoned for life, &c. — the wife had the powers of a feme sole. — 14 Am. & Eng. Enc. of Law, 591. The reason for engrafting the exception referred to on the disabilities of the wife to contract at common law was, that without it, oftentimes married women, whose husbands had renounced their wives, families and country, “could obtain no credit on account of their husbands, for no process could reach them ; and they could not recover for a trespass on their persons or their property, or for the labor of their hands. They would be left wretched dependents upon charity, or 'driven to the commission of crimes to obtain a precarious support.” — Gregory v. Paul, 15 Mass. 31; Mead v. Hughes, supra. The same reasons, it is contended for the appellee, apply to engraft an exception in favor of married women, in cases of the insanity of their husbands, and for the further reason, that the husband being insane, no marital right can be affected, and every presumption of possible coercion is removed out of the way, — citing Reeve’s Domestic Rela
One is not civilly dead who is insane, nor, — if not removed beyond his State, — can he be said to be where process may not be served on him. He is responsible for contracts made before he became insane, and may be sued on them. And that one insane may be the better taken care of, and- not become a charge on his family, the statutes of this State provide for the appointment of a guardian of his person and property. — Code, § 2390. So far as he is concerned, if a married man, the wife has no occasion to enter into a contraer for his support with an asylum. The same reasons, then, for the rule invoked as to the capacity of the wife to contract, whose husband is civilly dead, or who has abandoned his wife and family, and gone to reside in another state, with no intention of returning, do not apply to cases of the mere insanity of the husband. In the American Sl English Encyclopedia of Law, it is said on this subject, that “as a general rule, the insanity, infancy, or other incapacity of a husband does not affect the personal status of the wife,” and the compilers, while stating that there seemed to be no cases on the point, added, that “the proposition is an easy inference from the well known principles on this subject.” — 14 Vol. 592.
Said section 2346 of the Code, touching the wife’s power in this State to contract with the written consent of her husband, is in derogation of the common law, and it would seem that none of the exceptions to which we have been referring, on the power of the wife to contract at common law, have anything to do with the statutes of this State on the subject. These statutes seem to create their own exceptions to the wife’s power to contract. In section 2348 it is provided, that “if the
Reversed and remanded.