Zachary v. Cadenhead

40 Ala. 236 | Ala. | 1866

BYRD, J.

The husband is not liable for a debt of the wife contracted before marriage, if contracted since the adoption of the Code. — Code, § 1981. To recover on such debt, she must be sued alone, and her separate estate is liable to the satisfaction thereof, as if she were an unmarried woman. If unmarried, certainly, at common law, and under our statute law, any estate, separate or. other, then belonging to, or afterwards acquired by her, would be liable to the satisfaction of such a debt, as long as she was the owner thereof and unmarried; and in a suit on such a debt against her after marriage, it would be unnecessary to aver that she had or has a separate estate, in order to entitle the plaintiff to a recovery; for, as to that debt, and as to the liability of her separate estate to its satisfaction, she has to be sued, and satisfaction of tbe judgment enforced, “as if she were an unmarried woman.”

Before ber marriage, tbe creditor could sue ber, and obtain a general judgment; and all property then owned by ber, or acquired afterwards, would be liable to tbe satisfaction of tbe judgment. Section 1981 of tbe Code does not change tbis liability by tbe act of marriage, but, as to ante-nuptial debts, leaves ber Habihty unchanged. To bold otherwise, would be to allow ber to .change ber relation and habihty to ber creditors by ber own act, and to lessen their security; while at common law, tbe act of marriage did change that relation and habihty, but it increased tbe security of tbe creditor, by making tbe husband also liable for tbe debt during marriage.

Tbe averment in tbe complaint, that she bad “a separate estate,” was unnecessary, and surplusage.

Tbe case of Ravisies v. Stoddart & Co., (32 Ala. 599,) and other cases in harmony with it, are not in conflict with tbe doctrines of tbis opinion. Those cases are founded on section 1987 of tbe Code, and are expressly put upon tbe ground that, for tbe contracts specified in that section, “tbe separate estate of tbe wife is hable, to-be enforced by action at law” against tbe husband and wife jointly, or against him alone. Tbe rules, therefore, laid down in those cases, are not applicable to tbis.

Tbe complaint, being in comformity to tbe views above expressed, and to sections 2227 and 2228 of tbe Code, was sufficient; and tbe court properly overruled tbe demurrer to tbe complaint, and sustained tbe demurrer to tbe plea. Tbe judgment rendered by tbe court is correct in form and substance.

Tbe judgment is affirmed.