85 Ala. 588 | Ala. | 1888
The real estate sought to be subjected to a vendor’s lien is clearly the statutory separate estate of Mrs. Bamage, the title being conveyed by deed directly to her, without the intervention of an active trustee for her benefit. — Code, 1886, ¿5 2351. In this property, the husband has no interest which requires the protection of the court. The effect of the act of February 28, 1887, defining the rights and liabilities of the husband and wife, and now embraced in the present Code (§§ 2341-2351), is to remove the husband from the trusteeship. of his wife’s statutory separate estate, and to abrogate all his marital rights incident to this relation. This office of trustee, being created by statute, can be taken away in like manner. — Rooney v. Michael, 84 Ala. 585; Robinson v. Walker, 81 Ala. 404; Holliday v. Jones, 57 Ala. 525. He now has no title, legal or equitable, to such estate, and no right to the rents, income or profits. The only right left him is a right to veto an alienation of the property by the wife, without his assent and concurrence, except in certain cases. — Code, § 2348. His relation as husband did not require that he should be made a party. And, while his relation as surety, or co-maker of the note with the wife, would authorize his introduction as a proper party defendant, it would not make him a necessary party. — Tedder v. Steele, 70 Ala. 347.
There was no error in overruling any of the four grounds of demurrer.
Affirmed.