59 Ala. 431 | Ala. | 1877
The original and amended bill filed by the appellant, in substance allege, that the appellee in 1872 and 1873, a married woman, wife of one Charles Chamberlain, since deceased, contracted on her own credit, and on the faith of her statutory separate estate, an account with appellant for articles of comfort and support of herself and family, The husband had no property or credit, and the credit was given wholly on the faith of the statutory separate estate of the appellee. The prayer is, that the estate of the appellee be subjected to the payment of the account, and for general relief. A demurrer was interposed, assigning for cause a want of equity in the bill, which was sustained, and the bill dismissed. From the decree, this appeal is taken.
The statute declares a liability on the separate estate of a married woman, which it creates, “for articles of comfort and support of the household, and for the tuition of the children of the wife, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law.”—Code of 1876, § 2711.. The construction of this provision, adopted soon after its enactment, and which has since been adhered to steadily, is, that fixing a liability on the husband is an essential, indispensable element of the liability of the statutory estate.—Burden v. McWilliams, 31 Ala. 438; Ravisies v. Stoddart, 32 Ala. 599; Eskridge v. Ditmars, 51 Ala. 245. The necessities of the wife,"or of the family, may be supplied under circumstances not imposing on the husband responsibility to answer to the person who assumes to supply them. The wife may elope, though it be not with an adulterer, and the husband is not chargeable with necessaries, unless he receives her back again. The separation puts all persons on inquiry, and at their own peril, they give her credit. Other instances in which her necessities may be supplied, without fixing liability on the husband, readily occur to the professional mind.—2 Kent, 132. The absence of his responsibility is as fatal to a recovery of, or against the estate of the wife, as would be the absence of the specific consideration the statute expresses—articles of comfort and support of the household or the tuition of the children of the ivife. Neither the words or the policy of the statute would be satisfied by any other con
The bill avers the articles purchased by the wife, were for the support and comfort of the household—in other words, they were necessaries, which at common law, the wife had an implied authority to purchase, or which in the absence •of a proper provision for her maintenance, a stranger could have supplied to her on the credit of the husband. A duty of the husband imposed by the common law, which the .statute does not lessen or modify, is to maintain the wife suitably to her situation and to his condition in life. It is this duty and the liability consequent upon it, to which the statute refers, when it declares the contracts for necessaries •for which the statutory estate is liable, are such as the husband would be responsible for at common law. If the husband is without fortune, what are necessaries must be graduated to the degree of the wife’s fortune, and to her social position, and to this extent only, it may be in some cases, the statute will enlarge the liability of the husband as defined at common law. The statute intends that the measure of the husband’s liability is ascertainable not as at common law from the degree of his fortune only, but from the degree ■of that fortune, and the degree of the wife’s statutory estate, of which he is trustee, and to the rents, income, and profits of which he is entitled. The agency in making the contract is not, as it was not at common law, material. The husband or wife, separately or jointly may enter into the contract—or, without contract with either, a stranger may supply the wants of the wife, and a liability against the husband,
It is insisted however that the wife has capacity to bind her statutory estate, by her own contracts for necessaries, and a court of equity has original inherent jurisdiction to enforce such contracts against the estate. The incapacity of the wife to contract, at common law, was general and absolute, not arising from any want of discretion, “ but because she has entered into an indissoluble connexion, by which she is placed under the power and protection of her husband, and because she has not the administration of property.”—2 Kent, 150. In Murray v. Barlee, 3 Myl. & K. 209, (9 Cond. Eng. Ch. 7), said Lord BROUGHAM, “that at law a feme covert can not in any way be sued, even for necessaries, is certain. Bind herself or her husband, by specialty she can not; and although living with him, and not allowed necessaries, or apart from him, whether on an insufficient or an unpaid allowance, she may so far bind him, that those who furnish her with articles ■of subsistence may sue him, yet even in respect of these she
The statutory estate is not an equitable, but a legal estate. Courts of law are bound to its recognition, and the wife, if compelled to resort to legal remedies for its recovery, can pursue them only in her own name. Or, if the estate is claimed adversely, an action at law for its recovery must be prosecuted against her alone.—Code of 1876, § 2892. The husband has no authority to receive the equitable estate of the wife, without consent or concurrence; but the statute confers on him such authority as to her statutory estate, and his receipt in which she does not unite, nor to which she yields assent, "is a full discharge in law and equity.”—Code of 1876, § 2710. The value of the statutory estate, but not of the equitable estate, is subtracted from the value of her dower in the lands, and her distributive share in the personal estate of her husband, if she survives him. The husband may be tenant by the curtesy of her equitable real estate, but can take no interest in her equitable personal estate, if he survives her. Of real estate, the statutory estate, whether there is or not issue born alive of the marriage, the husband surviving, takes an estate for life, and takes one-half of the personal property absolutely, if the wife^dies intestate. The wife may contract with the husband in reference to her equitable estate, and may alien or give to him the same interest as to any other person.—1 Lead. Eq. Cases, 690; Barker v. Barker, 32 Ala. 473. Contracts by which the wife aliens, or gives to the husband her statutory estate are prohibited. Code of 1876, § 2709. Without the concurrence of the wife, the husband can not by any contract, not even for necessaries create a charge on the equitable separate estate. The statutory estate is charged with liability for necessaries, though it is the debt of the husband, and he is the agent in contracting it, and the wife is without capacity by her dissent to avoid the charge. There is manifestly but little analogy between the equitable and statutory estate. The latter is the creation of the statute, and its quality and incidents must be measured and ascertained from the terms of the statute.
We repeat that it is obvious while the purpose of the statute is in some respects to enable the wife; its larger sphere and operation is to disable the husband. Ability is conferred on the wife to take and hold property, and the husband is disabled by any act of his own, by reduction into possession or otherwise, or by the operation of common law principles, from acquiring title to her property, or property
If the estate of the wife under the statute bore a closer analogy to an equitable estate—if we could resort to the doctrine of a court of equity in reference to that estate, to guide us in passing on the power of the wife, her capacity to alienate, or by contract to bind the estate in any other mode than by an instrument in writing in which the husband joined, and which was attested or acknowledged as the statute directs, could not be deduced. It is only when her