Adams v. Frampton , 9 Ala. 124 ( 1846 )

GOLDTHWAITE, J.

1. The special verdict states the possession of the plaintiff, in 1832, under an equitable title, and this possession seems to have been continued by the wife, until the period when she executed her deed to the defendant. This deed is entirely void, as the wife had no capacity to contract without her husband’s consent. The defendaiit then, has exhibited no title whatever against that of the plaintiff, and the latter is entitled to recover, if the suit is correctly brought, and is not defeated by the divorce a vinculo. [Day v. Alverson, 9 Wend. 223; Whitney v. Wright, 15 Ib. 171; Jackson v. Hubble, 1 Cowan, 613; Jackson v. Miller, 6 Ib. 751; Badger v. Lyon, 7 Ala. Rep. 564; Smoot v. Lecatt, 1 Stewart, 598.]

2. The possession being in the husband previous to the acceptance by the wife of the deed from Hardy, no one coming into possession under the act of the wife, can dispute the right of the husband to regain the possession, unless he connects himself with a better title. The defendant has failed to do this, because of the entire invalidity of the deed by the wife, and therefore it is unnecessary to consider what the title of the wife is, under that deed, as it is clear the husband is not thrown on that to maintain his action.

For the same reason, it is unnecessary to consider what the effect is of the divorce a vinculo. Both these questions will be better considered when the husband shall regain his possession, and his former wife assert her title.

Judgment affirmed.