Sadler v. Houston

4 Port. 208 | Ala. | 1836

COLLIER, J.

— The defendants in error filed their bill in the Circuit Court of Morgan, against Sadler and -wife, and Wallace, a trustee, (in an anti-nuptial agreement, made between the husband and wife,) praying.that the separate estate of the wife might be subjected to the payment of a promissory note, made and subscribed, with the names of the husband and wife, payable to Ann Rossell, and by her assigned to the defendants in error.

The agreement secures to the wife all estate, both real and personal, of which she was possessed, before, or might become possessed after, coverture, and invests her with powers quite as extensive as are usually conferred by such agreements.

On the hearing, the Circuit Court disregarded the deposition of the husband, which had been taken at the instance of the plaintiffs in error," without any previous order for that purpose ; refused to reject the depositions of Bestor, Fields, and Sapps, taken, at the instance of the defendants in error, and rendered a decree in favor of the defendants in error, directing a sale of the separate estate of the wife, as asked by the bill.

The rejection of Sadler’s deposition, the refusal to reject the depositions of Bester, Fields, and Sapps, and the rendition of the decree, are the only matters assigned for error.

■ It is an universal rule, as applicable to civil causes, that the husband and wife can not give evidence for, or against each other. Under the influence of this rule, without making an inquiry into the extent of his interest, the deposition of Isaac Sadler was properly disregarded by the Court.

Without inquiring whether the depositions of Bestor, Fields, and Sapps, should be excluded, so far as they speak of a written authority to the husband, to sign the name of the wife to the note : the admission by the wife, that the note was the note of her husband and herself, and that it was to be paid from her separate estate, is an adoption of the signature made by the husband for her, and is as effectual for all purposes, as if a previous authority had been given. — ■ That the wife i.hus adopted it, is satisfactorily shewn by the depositions of Chapman, Peters, and Sapps, to say nothing of the circumstances of corroboration furnished by other depositions in the cause.

In regard to the correctness of the decree, the wife has expressly undertaken in writing, in conjunction with her husband, to pay the note in controversy. Upon a full review of the authorities in the case of Forest and wife vs Robinson, at this term^* we decided that such an engagement was a proper charge upon the separate estate. The consideration of the note in question, was for the separate benefit of the wife, and redress might well have been sought in equity.

The failure, or want of consideration, which the plaintiffs in error attempted to set up against the payment of the note, even if sustained by ‘proof, could avail nothing. The repeated admission of a liability, and expression of a determination to pay it, after the defendants in error became its assignees, prevent them from denying as against its present proprietors, the sufficiency of the consideration on which the note was made.

Our attention has been called to the latter part of the decree, by the defendants’ counsel, with a view to have it so corrected here, as to authorise its immediate execution — the time appointed for that purpose having expired. We have no right to. cause amendments to be made in decrees and judgments of an inferior Court, unless they are not such as “ should have been rendered,” but that must be left to be done by the Court below.

We are of opinion, that there is no error, and the decree is therefore affirmed.

* Ante,44.