83 Ala. 408 | Ala. | 1887
The bill is filed by appellees, who are husband and wife, and its purpose is to enjoin a statutory trial of the right to property, and to establish the right of the wife to the property in controversy, which was levied on by an attachment sued out by the appellants against the estate of the husband, and claimed by him as husband and trustee of his wife. The affidavit made by the husband, preliminary to putting in the claim, states that the goods levied on are the property of his wife, held and owned by her under a conveyance from him. It is insisted that the husband, by executing a bond requisite to obtain a trial of the right of property, and possession of the property, fixed a liability upon himself, from which a court of equity will not relieve him, on the ground that complainants were ignorant of, and mistook their legal rights.
A conveyance by the husband directly to the -wife creates in her an equitable estate, but is inoperative to pass the legal title. Under the law at the time the claim was interposed, only the legal title was in issue in a statutory trial of the right of property; equitable rights would not be regarded or enforced. If the legal title was found to be in the defendant in the attachment,- the property would be held, in a court of law, to be his, and subject thereto. In such case, in order to uphold the equitable estate, and protect it against the creditors of the defendant in attachment, resort to a court of equity was necessary.—Loeb v. Manasses, 78 Ala. 555. It is well established, that when personal property of a married woman is levied on under executions against the husband, who is her trustee by operation of law, she may come at once into a court of equity, to protect it from levy and sale, or, after it has been sold under the executions, to recover the property.—Cole v. Varner, 31 Ala. 244; Gerald v. McKenzie, 27 Ala. 166. There can be no sufficient reason,
It is insisted, that, though the wife may come into equity for the purpose of protecting her equitable estate, the husband, having interposed a claim under the statute, and having given the claim bond, can not unite with her in the bill. Notwithstanding a party may have failed in the assertion of a legal defense, and judgment has been rendered against him, he will not be precluded from relief on independent grounds exclusively equitable; and an unsuccessful attempt to assert in a court of law a purely equitable defense will not prevent relief inequity.—Greenlee v. Gaines, 13 Ala. Rep. 198; Howell v. Motes, 54 Ala. 1. The affidavit of claim made by the defendant in attachment shows, that the right to the'property, asserted and intended to be put in issue, is the equitable title of the wife; and the recitals of the claim bond are, that he made affidavit, that as husband and trustee he has a just claim to the property, and that it is the property of his wife. The condition of the bond is, that “ J. C. Boyleston, as husband and trustee aforesaid, shall have the said property, above described, forthcoming for the satisfaction of the judgment, if it be liable therefor, and pay such costs and damages as may be recovered for putting the said claim in for delay.” Neither the bond nor affidavit, nor both, estop the husband from uniting with the wife to obtain protection of the trust property by a court of equity. It is no more than an .attempt to assert in a court of law a claim purely equitable. The liability imposed by the bond is contingent on the property being found subject. The purpose of the bill is, not to relieAre the claimant from this contingent lia
Tbe case does not come under tbe operation of tbe act of February 28, 1887, ammending section 3341 of tbe Code of 1876, by which it is provided, that tbe statutory right of trial to property shall include any person who bolds a lien upon, or equitable title to tbe property levied on. Tbe claim was interposed before tbe passage of tbe act, and tbe statute is not retroactive.' — Wetzler v. Kelly, at present term; Code, 1886, § 3004.
Affirmed.
