Reeves v. McNeill

127 Ala. 175 | Ala. | 1899

SHARPE, J.

The evidence shows that by the plaintiff’s direction the goods taken in execution as the property of plaintiff’s husband were bought in her name and partly paid for with her money and that the unpaid part of the price was charged to her. As between the present parties it is immaterial whether the vendor knew that plaintiff’s husband was acting for her in the purchase. If ignorant of that fact it may be that the vendors could have avoided the transaction, but they liad also the right to treat it as the plaintiff’s purchase, and so far as appears they have not questioned her ownership. The plaintiff was not by yeason of coverture incapacitated from acquiring property in the goods, and her purchase was none the less effective because in making it she was represented by her husband, or that she had not his written consent. — Lister v. Vowell, 122 Ala. 264; 25 So. Rep. 564; Carter v. Fischer, ante. p. 52.

It is not shown that the plaintiff acquired either the goods or the money paid thereon by transfer from her husband. $100 of the money was borrowed by her from a third person and the balance of $125 she “saved by littles” during her married life, principally from cotton raised by her. If so acquired since the statute of February, 1887, the latter sum would be classed as the plaintiff’s earning’s and consequently as her property. That the accumulation ivas subsequent to the act, is fairly inferable from the plaintiff’s statement that she had been married only twelve years, which period, lacking only a few months, had elapsed between the act and the trial. Even if part was earned before the statute, her husband in the absence of actual fraud and as against subsequent creditors, could have renounced its ownership in favor of the plaintiff. — Bates v. Morris, 101 Ala. 282. The record contains no evidence of fraud in that connection, and it fails to show when the execution creditor’s debt against J. J. McNeill was contracted, or even that it was prior to the purchase of these goods.

The bond indemnifying the sheriff was competent evidence to connect the defendant sureties with the alleged trespass, and the court was not bound to limit its effect without being requested to do so.

From what -we have said it follows that there was no error in the refusal of charges 1 and 2. Charge 3 was abstract. There is no evidence that the cotton mentioned was raised on lands of the plaintiff’s husband or at his expense. The evidence does not sustain either plea. It was without contradiction and supports the verdict. The motion for a new trial was properly overruled.

Let the judgment be affirmed.