109 Ala. 104 | Ala. | 1895
Under general principles of equity jurisprudence, uncontrolled by statute, a married woman, in respect of her separate estate, was regarded as a feme sole. She could dispose of, charge or encumber it in like manner as if she rested under no marital disability. There being no other trustee, her husband was regarded as the dry holder of the legal title, while she held the entire beneficial interest, subject to her own unlimited control and disposition. When not acting under the actual 'and implied coercion of the husband, she could bind the estate by acts in pais, amounting to an equitable estoppel. — Drake v. Glover, 30 Ala. 382. And she could, by. such acts, dedicate her lands to public use.— 5 Am. & Eng. Encyc. of Law, 399.
A prime question, now presented, is, whether she can, by acts and conduct in pais, dedicate to public use land which is made a separate estate in her by the statutes of Alabama. As is well known, the land in question of Mrs. Weir (which must be presumed, in the absence of contrary averment, was acquired not under a conveyance excluding the marital rights of the husband) would not, in the absence of legislation, have constituted property belonging to her. If it belonged to her at the time of the marriage, or was afterwards acquired, it would, at common law, eo instanti the marriage, or its aequisisition, have vested in the husband, for the joint lives of himself and wife; and, he surviving her, for his life as tenant by the curtesy, the other conditions of curtesy being present. So that we see, at once, that Mrs. Weir’s ownership of such land is purely the creation of the' statute ; and, of consequence, she takes just such an es-state as the grace of the statute confers. If the statute, which creates and confers the estate, imposes limitations. or restrictions upon her powers over it, she takes the estate cum onere such limitations or restrictions. Recurring to our legislation on the subject, we see that all equitable separate estates, such, as we have said, the wife could have disposed of, or charged, in equity, as a feme sole, have been abolished, with the single exception of estates where the legal title is vested in an active trustee for the use of the wife '■ and all such abolished equitable estates, and all other estates coming to the wife, which, as we have said, would have vested in the husband, at common law, are created and converted by the statute into
Dedications of land to public uses, -not effected by statute or grant, and where private rights have been acquired, as alleged in the present case, operate upon the principle of estoppel in pais, or, as it is termed, equitable estoppel. It arises from the conduct of the owner,.including his spoken or written words, his positive acts, and his silence or negative omission to act when he should, naturally inducing many persons to purchase property, expend money, or otherwise alter their conditions, to’their detriment. — 2 Pom. Eq., § 802; 5 Am. & Eng. Encyc. of Law, 410, notes; People v. Reed, 15 Am. St. Rep. 22.
The conclusion, then, is irresistible, that a married woman cannot divest herself of her statutory real estate, by dedicating it- to public use, except by the joint deed of herself and husband, executed as the statute pre
The Chancellor committed no error in dissolving the injunction and dismissing the bill for want of equity.
Affirmed.