McMullen v. Lockard, 64 Ala. 56

McMullen v. Lockard

64 Ala. 56 | Ala. | 1879

STONE, J.

The charge to the jury in this case puts Lockard in a category, which denies to him the right to condemn the note of Cox in the attachment suit. The statutory separate estate of Mrs. McMullen could not be reached by attachment, whether levied on property or by garnishment. Cauly v. Blue, 62 Ala. 77; Saunders v. Garrett, 33 Ala. 454. But the present suit is between the attaching creditor, and the alleged transferree; in which, the fact and bona fides of the transfer before service of the garnishment, can alone be put in issue and tried. — Code of 1876, §§ 3302 et seq. ; Rowland v. Plummer, 50 Ala. 182.

The legal title to the note, according to the evidence, was in John McMullen, the husband, although the consideration on which it was given was the statutory estate of the wife. The testimony tends to show that, with the concurrence and approbation of the wife — in fact, with her participation — this note, for full value, was traded and transferred to Thomas N. *60McMullen, the claimant, before the garnishment was served. The attachment suit and levy seek to condemn this debt, as the property of John McMullen. If it was not bis property, but belonged to the statutory estate of the wife, then it was not tbe subject of garnishment, in this, or any other suit against the husband. — Saunders v. Garrett, supra. Proceeding, as Lockard must, and does, to condemn this note as the property of the husband, and not of the wife,-he thereby disarms himself of all power of disputing tbe right of the husband to sell and transfer it, on the ground that it is of tbe statutory separate estate of tbe wife. The note can not be tbe property of the husband, liable to his debts, and, at the same time, the property of tbe wife, not subject to the husband’s power of disposition. The two positions are irreconcilably repugnant. So, we bold that, in attaching this note as the property of John McMullen, Lockard estopped himself from denying John McMullen’s power to dispose of it. In other words, he can not claim to have acquired title under the husband, and defend bis possession or grasp under the title of the wife.

Reversed and remanded.