Spear's Adm'r v. Lumpkin

39 Ala. 600 | Ala. | 1865

A. J. WALKER, C. J.

This suit is by a married woman. The first count of the amended complaint alleges an indebtedness due by account to the complainant, in 1857, and “secured to her as a separate estate under the Code of laws of Alabama before her marriage.” This averment shows that the debt became due to the complainant after the adoption of the Code, and before her marriage; and negatives the conclusion that she had a separate estate in the debt created by contract, by showing that the separate estate existed by virtue of the Code 'of laws of Alabama. We regard the allegation as sufficiently averring a separate estate existing by law, and that the debt belonged to the corpus of the estate. This being the case, the suit was properly brought in the name of the wife alone.—Pickens v. Oliver, 29 Ala. 528; S. C., 32 Ala. 626; McConechy v. McCaw, 31 Ala. 447; Boynton v. Sawyer, 35 Ala. 497.

The second count varies from the first, in saying that the separate estate was secured to her “under the act of 1848.” We are not sure that any thing more was necessary than to show that the debt was due to the complainant before her marriage, and after the adoption of the married woman’s law; for debts due to a woman, who married after that time, would be her separate estate under the law of the State, and she could sue separately in her own name. But this right of suit is precisely the same, whether the separate estate existed by virtue of the Code, or of the act of 1848. We therefore can perceive no reason for holding the count defective, because it attributes the origin of the separate estate to the act of 1848.

The objection to the third count is not tenable. If the money loaned belonged to the complainant’s separate estate, held by virtue of the law, and not of contract, (which we think sufficiently appears,) it matters not whether the loan was made before or after the marriage. In either alternative, the right of action is in the wife alone, as settled in Pickens v. Oliver, supra.

If it be at all material, the fourth count, in our opinion, shows the account to have been stated before the marriage.

[3.] The first count, in claiming the debt as due by the defendant as administrator, under our system of pleading sufficiently alleges the debt to be due by the defendant in his representative capacity.—Crimm v. Crawford, 29 Ala. 623.

The grounds upon which the exceptions to the charge given, and the refusal to charge, were predicated, have not been shown to us in argument or brief. We perceive no objection to either. It is probable that what we have said will cover the points had in view when the exceptions were taken.

Affirmed.