Bradford v. Goldsborough , 15 Ala. 311 ( 1849 )

DARGAN, J.

The property upon which the deed was intended by the parties to operate, was the undivided interest of the wife, in the estate of her father, the legal title to which was vested in the mother, as executrix. That the wife was in equity, before her interest was reduced to possession, entitled to a settlement out of this property, as against the claims of her husband, his creditors or assignees, is too clear to require argument or authority. This right then of the wife, to have a settlement decreed her in opposition to the right of the husband, and to all who may claim through him, is the consideration upon which the deed of the first of January, 1845, executed by the husband in favor of the wife, is founded; and that such a consideration is sufficient to support the deed in equity, must be manifest from the reflection, that had the wife filed the bill against the husband, previous to the division of her father’s estate, equity would have decreed the husband to make a suitable settlement upon her. If, at the time the deed was executed, the wife could have filed her bill against her husband to have a suitable provision settled upon her, and the husband did by deed, what equity would have decreed him to do, of course the court must uphold the deed. But it is contended that the deed is void at law, and being void at law, as soon as the division of the property was made, the marital rights of the husband attached, and the claim of his creditors must therefore prevail.

It is certainly true, that the deed must be considered as a nullity in a court of law, for at law, the individual existence of the wife is merged in that of her husband. They are considered as one', and cannot contract with each other. But the rule is widely different in a court of equity, and husband and wife may for good reason, and on valuable consideration, contract with each other, and equity will uphold and sustain the contract. 2 Sto. Eq. 601, §. 1372. In the case of Gallego v. Gallego’s ex’r, 2 Brock. 285, the plaintiff was entitled to a legacy under the will of her father, and her husband executed an instrument under seal, relinquishing his right to the legacy to the wife. The wife sued the executor of the will, by her next friend, and the executor insisted, that she being a feme covert, could not demand the legacy; and further, that her husband was indebted to the testator, and insisted on the right to retain the amount of this debt; also, that another creditor of the husband had attached the legacy in his hands.

Ch. J. Marshall held the relinquishment made of the legacy by the husband, in favor of the wife, to be valid against his creditors; and decreed the payment of the legacy to her, in accordance with the terms of the instrument. Indeed, it must necessarily result from the fact, that a married woman can hold, and enjoy separate property, and that she is entitled against her husband to have a settlement made upon her out of her choses in action not reduced to possession, that the husband and wife may contract in reference to those subjects ; and if their contracts are reasonable, a court of equity must sustain them. It is not contended, that there is any circumstance connected with this contract, within itself, that would induce a court of equity to condemn it, or to refuse to sustain it: except that it is void at law, and being void at law, the possession of the slave by the wife, was the possession of the husband, and thus the marital right was perfected, and his title at law absolute. In a court of law, this would certainly be the condition of the property; but in equity, we see, that the slave did not come to the possession of the husband before he entered into the contract, which the complainant seeks to enforce ; and that by the terms of this contract, the husband agreed with the wife, on a valuable consideration, to wit, her equitable right to a settlement, that she should hold this slave for her own separate use. This contract equity will enforce, hence the possession of the husband, even if it can be considered as his possession, would be that of a trustee for his wife; and if the legal title vested at law in him, in equity he must be considered a trustee, and the equitable title of the wife must prevail over the husband and his creditors.

The decree of the chancellor must be affirmed.

Chilton, J., not sitting.