52 Ala. 456 | Ala. | 1875
On the 25th July, 1867, a conveyance of real and personal estate was made to Jane A Battle, a married woman, by her two sons and her son-in-law, in consideration of love and affection, to secure to her a comfortable residence, “ absolutely and in her own right.” The habendum of the conveyance is as follows : “To have and to hold unto her, the said Jane A. Battle, her heirs and assigns, the said house and lot, and the said household furniture and lot property, horses and carriage, for her own separate and absolute use and behoof forever, in fee simple.” A question decisive of this case is, whether the estate created by this conveyance is to be deemed and taken as a statutory, dr as an equitable separate estate ? If the former, the appellant, by the mortgage under which he claims, acquired no right or interest in the premises. If the latter, the mortgage is a valid security for a debt created cotemporaneously with its execution; and the appellant is entitled to protection against outstanding equities of which he had no notice.
Although the husband acquired rights, he was subjected to duties and responsibilities; and though the legal existence of the wife was lost in that of the husband, compensation was afforded her, in relieving her from duty and responsibility. The wife not being sui juris was not subject to suit, and her husband became liable for her debts contracted prior to marriage, if they were enforced during coverture. He was answerable for them, not because he had received her fortune, for he may have received nothing, but because after marriage the wife was not sui juris, — had not a legal existence. The husband was
Resting on this principle, it was the policy of the common law to favor the marital rights of the husband. The courts of common lawTooked steadily to, and took cognizance of legal titles only. The separation of the use and enjoyment, and of the beneficial ownership of property, as distinct from the legal title, had its origin in the doctrine of trusts, which were the subject of the exclusive jurisdiction of a court of equity. From this doctrine springs the separate estates of married women, often denominated common law separate estates, rather because they had been so long known and recognized at common law, as existing in courts of equity, than because they rest on any common law principle. The simplest form of a trust would be the conveyance of an estate to A. for the use and benefit of B. In a court proceeding on common law principles only, A. would hold the legal title, and could take the rents and profits without liability to B. In a court of equity he would hold the legal title as a trust only, that it should not be asserted to the injury of B., and to him he would be compelled to account for the rents and profits. A trustee not being interposed, a gift, devise, or conveyance to a married woman for her sole and separate use, free from the control of her husband, created a trust, and this trust.was her separate estate. Incapable of acquiring or
Departing from the common law principle, of the incapacity of the wife to take and hold property, it was, according to the authorities which have prevailed in this court, a logical and legal sequence, that as to such property the wife should be regarded as a feme sole, having capacity to contract, alienate, or otherwise dispose of, or to charge it, unless restrained by the instrument creating the estate. Forrest v. Robinson, 4 Port. 44; Bradford v. Greenway, 17 Ala. 797; McCroan v. Pope, Ib. 612 ; Collins v. Rudolph, 19 Ala. 616 ; Booker v. Booker, 32 Ala. 473; Paulk v. Wolfe, 34 Ala. 541; Gunter v. Williams, 40 Ala. 561.
Applying this principle to the present case, if it is determinable according to the principles by which it would be determined in the absence of statutory provisions, the result would be that the grantee, Mrs. Battle, has a separate estate in the premises. This estate she was capable of alienating as if she were a feme sole, and of consequence, charging it by mortgage, as a security for her own debt, or that of another. The mortgage being made as security for a debt contracted cotemporaneously, the mortgagee becomes a bond fide purchaser, entitled to protection against the equities of the appellee, of which he had not ■ notice. The mortgage security enters into the consideration on which the credit is given. Wells v. Morrow, 38 Ala. 125.
We now reach the difficult question presented. Is this estate subject to the statutes defining the separate estates of married women, — their mode of enjoyment, the rights and powers of the husband and of the wife over tfyem, the extent to which they are alienable, or liable to be charged, and the course of their descent and distribution? This question was answered by a series of decisions in this court, in which it was
The former decisions are not referred to, and the theory of the opinion, is thus stated : “ The deed conveys the property of Mrs. Molton, to her sole and separate use and behoof. Before the Code, the terms of this conveyance would have excluded the marital rights of the husband, and given the wife such an .interest in the property as she could have charged by her simple promissory note. But § 2371 Revised Code makes all property of the wife, held by her previous to the marriage, in any manner, the separate estate of the wife, not subject to the payment of the debts of the husband. Is there such an opposition in the terms of the deed and those of the statute that both cannot stand together ? What is the difference between the separate estate of the wife, not subject to the payment of the debts of the husband, and an estate of the wife to her sole and separate use and behoof ? Is there such an evident intention expressed in this deed to change the tenure of the estate, as to overcome the denial of the answer,” &c. We have quoted all that is said on this point in that case.
The statute, so far as this opinion refers to it, simply declares : “ All property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage, in any manner, is the separate estate of the wife, and is not subject to the payment of the debts of the husband.” If it is conceded a conveyance, expressed in the words of the
The first statute creating separate estates in married women, approved March 1, 1848 (Pamph. Acts 1847-8, p. 79), was, as to the tenure of the estate, more specific in its language, though not variant in legal effect, from the present statute. It not only declared the property of the wife, whether owned by her at the time of the marriage, or subsequently acquired, should be her separate estate, but further that it should be taken, held, and esteemed in law “ for her sole and separate use, notwithstanding her coverture; and no husband shall by his marriage acquire a right to the property which his wife had upon his marriage, or which she may after acquire by descent, gift, devise, or otherwise, except as hereinafter provided for.” The power of the wife over this separate estate was not defined ; of her capacity to charge it, the statute was silent. In Hooper v. Smith (23 Ala. 639), it was held, that the wife could charge, sell, or dispose of the estate the statute of 1848 created, without the consent or concurrence of her husband; that as to her capacity of disposition, in nature, quality, and incident, it was an equitable separate estate. If the present statute was in terms similar to that of the statute of 1848 ; if it did not define the extent of the wife’s capacity to dispose of her separate estate, though the terms in which
The decision in Molton v. Martin, supra, was succeeded by the case of Glenn v. Glenn (47 Ala. 204), in which a devise to a wife, “ for her sole and separate use during her natural life, and at her death to he equally divided between the children she may leave, or their lawful heirs f was construed as creating a statutory estate. The court allude to the former decisions distinguishing the statutory estate from the equitable separate estate, but declare an inability to see the basis on which the distinction rests. It was held the statutes repealed all laws regulating equitable separate estates, superseded them, and substituted the statutory estate in all cases, except where a trustee was interposed. The case of Denechaud v. Berry (48 Ala 591) asserts the same doctrine on the same reasoning. We are not informed why the mere interposition of a trustee excepts the estate from the operation of the statute. If the exception exists, it is not because the statute expressly declares it, but it arises from construction, and is dependent on the reasoning pursued in Sprague v. Tyson (44 Ala. 338), that the interposition of a trustee, intercepting the husband’s rights to take the rents and profits, is inconsistent with the nature of the statutory estates.
The error in the reasoning of the learned judge pronouncing these decisions rests on the hypothesis, that the statutes declaratory of what the wife’s separate estate consists, or more properly speaking taking away the husband’s marital rights, as they existed at common law, and would now exist but for the statutes, affect or change the law by which equitable separate estates were created and regulated. The statute really does not create, and was not intended to create, an estate in the wife. Before the statute can operate, the estate exists in the wife, and to that estate the common law attaches the marital rights of the husband. The divestiture of these rights was the purpose of the statute. It was the exercise of these rights, and the consequences resulting therefrom, which pro
As we have said, these decisions concede that, if a trustee is interposed, the statutory estate is not created, —the interposition of a trustee depriving the husband of the right as trustee to take the rents and profits. If the legal title is vested in a trustee, and the equitable title in the wife, what frees this equitable title from the operation of the statute, if the theory of these opinions be correct ? When the rents and profits pass from the trustee, who shall receive them ? If paid to the wife, what absolves them from the right of the 'husband to take them without liability to account ? The mere statutory right of the husband to take the rents and profits, without liability to account, is one of the most insignificant elements of the wife’s statutory estate. It is an incident which would probably have attached to the estate, in the absence of express statutory provision. Of her' equitable separate estate, the husband, while living with the wife, could receive the income
The donor of the estate, if he offends no law, may impose whatever limitations, or impart whatever qualities or incidents he chooses to the estate he may create. When by proper words he creates an equitable separate estate, does he not as clearly manifest an intention to deprive the husband of the statutory right to take the rents and profits, as if he had made the gift in form to a trustee ? When an equitable separate estate is created by gift, devise, or conveyance, or any other trust is created, the nomination and appointment of a trustee is not material. The trust is the subject of equity jurisdiction, and can never fail for the want of a trustee. The interposition of a trustee, in whom the legal title was vested, would not prevent the marital rights of the husband from attaching to the interest created in the wife at the common law. 2 Brick. Dig. 82, § 169. The only effect ascribed to it in these decisions is, that it intercepts the right of the husband to take the rents and profits; affecting his right in this respect only, what is it that cuts off the statutory right to the use and occupancy of the wife’s real estate during life, if he survives the wife, whether there be issue born of the marriage or not ? What is it that divests his right to take absolutely, as if he were next of kin, one half of her personalty ? It is not the interposition of a trustee, but the force and effect of the terms
Without extending this opinion, by a repetition of the reasoning pursued in the earlier decisions, which seems to us unanswerable, we feel constrained to overrule the cases of Molton v. Martin, supra, Glenn v. Glenn, supra, and Denechaud v. Berry, supra, on the point we have considered. The former decisions were made soon after the enactment of the statutes creating a married woman’s statutory estate. They announce that these statutes apply only to such estates of the wife as would not without statute have been a separate estate, and not to estates which by the terms of their creation are esteemed the separate estate of the wife. On this principle the mischief the statute proposes to correct is fully met, and the conveyances of parties allowed full operation. When by a gift or devise the intent to exclude the marital rights of the husband clearly and unequivocally appears from the creation in express terms of an equitable separate estate, — when it is not to be inferred from doubtful or equivocal expressions,— when the exclusion of the husband rests not on probability or possibility, but on the certainty and force of the terms employed, the statutes do not apply. But if the intent is doubtful or equivocal, — if it is matter of speculation, — the statute intervenes, as the common law would in its absence have intervened, and defines the character and quality of the estate.
The decree of the chancellor was not in accordance with these views, and must be reversed, and a decree here rendered dismissing the appellee’s bill at his costs in this court, and the court below.