45 Ala. 337 | Ala. | 1871
This is a bill filed by a married woman, by ber next friend, against her husband and her and bis mortgagee and tbe assignee of such mortgagee, to enjoin a sale of ber statutory separate estate, mortgaged by ber and her busband to secure tbe payment of a debt purporting to be contracted by the wife for a loan of two thousand dollars to ber after her marriage. The sale was enjoined by the chancellor below, and the defendants in that court bring tbe case here by appeal, and assign the chancellor’s decree for error.
No notice is taken, in this opinion, of the common law
The correctness of the chancellor’s decree, in this case, depends upon the construction of the law of Alabama governing “ the separate estate of the wife.” — Revised Code, §§ 2370 to 2388, both inclusive. This important statute was not intended to operate upon the contract of marriage, but to place the wife’s estate upon a basis hitherto unknown to our jurisprudence. It was intended to enlarge the powers over it after her marriage, to a certain limit, and to restrain and circumscribe the powers of the husband for her protection; for, had she been able to protect herself, there would have been no necessity for such a law. The statute was not intended so to operate upon her as to make her a feme sole, or a “ free dealer,” and to enable her to do business on her own account, as if she had never been married. But so far as her property is concerned, it was intended to modify her marital powers over it in connection with her husband; and it defines alike her control over it during her coverture, and her power over it after the marriage has terminated, and also the light of her husband as her trustee. This creates a peculiar statutory estate, to be held, controlled, and conveyed in the manner and for the purposes the statute has directed. It is not a law modifying the common law rights of the wife, as wife, but it is a new rule which wholly displaces the common law in reference to her title to her estate and her power to dispose of it. It is a trust estate in the hands of her husband, “ as her trustee,” for her use, to be held and disposed of as the statute prescribes. Separated from her estate, the wife is still a married woman, under all the disabilities of coverture, save so far as these disabilities are modified by the statute. But, connected with her estate, her powers over it are only such as the statute bestows. As a trust estate, the husband may be aided by the extra
The statute does not make the wife a trader in general, with powers to enter into all kinds of contracts touching her separate estate, and to bind herself as a feme sole. Without a statutory separate estate, she would be under all her common law disabilities, as to making contracts of any kind; so that her power to make contracts at all, grows out of her connection with her separate estate. When this is gone, her power to make contracts is gone also. Then, her statutory separate estate being the creature of the statute, her powers over it are also derived from the statute. These are, — the power to pay her debts contracted before marriage, the power to sell it for re-investment or to be used by the husband for her benefit; the' power to subject it to the burden of the support of her family; the power to dispose of it by her will; and the power to resume the absolute control of it, as a feme sole, on the removal of her husband as her trustee, by decree of the chancellor on a proceeding for that purpose, in a court of Equity. — Rev. Code, §§ 2370, 2373, 2374, 2376, 2378, 2383, 2384. Here the statutory powers of the wife end; and over such an estate she has no others. Her estate is wholly statutory and her powers^over it are wholly statutory. If she needs more she must resort to a court of chancery. And these powers, thus given to her by the statute, are, wisely, all that are needed, and possibly, all that can be wisely bestowed upon her, unless the legislature shall abandon all idea of her protection, and the preservation of her estate. And it is not this that the legislature has been seeking to accomplish. Under the powerful control of the husband, the wife can hardly be said to be free. Swayed by the subtle influence of love and fear, she has nothing that she ¿would willingly deny him. Knowing this, a wise and humane legislation has attempted to provide against its often fatal effects upon her estate. It has restrained both the husband and wife to limited and well marked powers over her estate, so that neither he nor she shall waste it. She cannot therefore go into the market as a trader; she cannot make contracts, save as the statute
The proofs in this ease eminently illustrate the necessity of confining the powers of the husband and wife over her estate to the strict statutory limits. Her testimony in this case, which is not materially contradicted, shows that she was the unwilling instrument of the husband, who had negotiated the loan and procured it, in entering into the contract for the loan and the mortgage. The money was for him, and not for her; she did not need it, or take any active steps to obtain it. The husband was the sole negotiator, and the note and mortgage deed were prepared without consulting the wife, and she was placed in the position of principal debtor, when, in truth, she was but the surety for the husband, who had agreed to pay an enormous interest for the use of the money loaned; and said interest was secured by the husband’s own notes, given to Wilkinson for that purpose; and the husband, in the end, got the money and used it for his own purposes. The wife can not be protected from the grossest frauds and oppression, if the construction of the statute above contended for is abandoned. I therefore think that the construction put on this important law, by the learned chancellor, in his decree in the court’ below, was correct. It will be but a mockery
The decree of the chancellor in the court below is affirmed. The appellant will pay the costs of this appeal in this court and in the court below.