32 Ala. 626 | Ala. | 1858
Lead Opinion
This suit was originally brought in the name of Margaret C. Pickens, as the sole plaintiff. Her husband was subsequently, by amendment, made a co-plaintiff with her, A motion was afterwards made, at another term, to amend the .complaint, so as to leave the husband the sole plaintiff upon the record, suing in the capacity of trustee for his wife. This motion was properly overruled. The effect of allowing an amendment, by
The question here is not, whether the husband reduced the property to possession as husband, but whether or not he reduced it to possession as trustee by virtue of his being the husband. The class of cases which hold, that the marital rights of the husband do not attach where property is given to a married woman by words which do not create a separate estate, but the husband nevertheless, receives and holds it during life as her separate estate, uniformly disclaiming any right in himself, have no application here. — Machem v. Machem, 28 Ala. 374; Jennings v. Blocker, 25 Ala. 415; Lockhart v. Cameron, 29 Ala. 355; Betts v. Betts, 17 Ala. 787. The question here is not, whether the marital rights of the husband attached. It is very clear that they did not, because a separate estate was vested in the wife. The question is, whether the husband ever had possession by virtue of the trust capacity attaching; to him as husband. The testimony shows that he did have such possession.
The judgment of the court below is affirmed.
Dissenting Opinion
I dissent from tbe opinion of tbe majority of the court in this case, for reasons which I stated, at length, in the case of Dwyer v. Kennemore, at January term, 1858. In that case, we departed from our former construction of section 2403 of the Code, as the same had been expressed in the case of Stodder v. Grant & Nickels, 28 Ala. 416. Having, in one respect, departed from the former construction, I think we should go farther, and place section 2403 of the Code on the high remedial ground, which, I think, it was designed to occupy.