75 Ala. 423 | Ala. | 1883
We can not assent to the argument, that Mrs. Sulzbacher, having taken possession under the bill of sale made by her husband, thereby converted her holding into a legal title, independent of the instrument under which she acquired it. The imperfection of her title, if imperfection it had, lay in the fact that her husband was incapable of vesting a legal title in her.—McMillan v. Peacock, 57 Ala. 127. Under the authority of that case, and of Turner v. Kelley, 70 Ala. 85, we feel bound to hold that Mrs. Sulzbacher’s title was equitable, and would not support a claim in an action at law. Her husband, as her trustee, should have interposed the claim; and, if he had refused, she then could have asserted her claim in the chancery court.—Block v. Maas, 65 Ala. 211 ; Lehmam, Durr & Co. v. Bryan, 67 Ala. 558.
Reversed and remanded.
