Krebs v. O'Grady , 23 Ala. 726 ( 1853 )

GOLDTHWAITE, J.

That a note payable to the wife is, in legal effect, a note payable to the husband, and as a necessary consequence can be transferred by his act alone, is, as a general proposition, well settled. There are, however, exceptions to this rule, and cases may exist in which the wife is authorized to take notes as if a single woman; and in such case, it follows that the title would pass by her endorsement. According to tho later English decisions, this can only happen when the husband is civilly dead, or his absence is involuntary, as when he is an alien enemy.—8 Term 547; 2 B. & P. 226; Begget v. Frier, 11 East 301; Barden v. Keverberg, 2 Mees. & W. 61; 2 Roper H. & W. 121. In this court wo have held, that where the husband has abjured tho State, and the wife has acted as a ferns sole, she will bo so regarded.—Arthur v. Broadnax, 3 Ala. 557; James v. Stewart, 9 Ala. 355. Tho question, however, us to what constitutes an abjuration of the State, so as to take the wife out of the disabilities of coverture, has not been settled with precision. We all, however, agree that there can be no abjuration in this sense, without an abandonment; of tho wife, and a removal from the State without an intention of returning.—Mead v. Hughes, 15 Ala. 140.

The wife may, however, act as the agent of her husband ; and a note payable to her, although in legal effect it is payable to him, may be endorsed by her in her own name ; and if done with the assent of tho husband, the endorsee acquires a valid title- And this assent is not required to be expressly proved, but may be inferred from circumstances. Such was the decision of this court in Roland v. Logan, 18 Ala. 307, and under the influence of this principle, if a wifo was living separate from her husband, and doing business in her own name, with his knowledge, her contracts, within the scope of that business, would he valid and binding, unless the husband dissented. His assent would in such a case he presumed. If the character of the business was such, as naturally to include the sale or disposi • tion of the husband’s effects, the same principle would apply; but where such disposition was not within the legitimate scope of tho separate business, most certainly no presumption of law could be created, and the jury would not ho authorized to presumo the husband’s assent to the disposition, unless their minds were fairly brought to that conclusion by tho facts before them in evidence.

The wife, in the absence of the husband, may have a general authority to exercise she usual and ordinary control over tho property loft in her possession by him, which must be controlled by some one ; unless the presumption of this authority is rebutted by proof that ho had constituted some other person his agent for that purpose.—Church v. Landers, 10 Wend. 79.—But the sale of the husband’s effects may he outside of tho usual and ordinary control of them ; and whether it is so or not must depend upon tho nature of the property, the length of the absence, and perhaps other circumstances. If the husband went to íJalifovj'ia, leaving the; wife to carry on his plantation during bis absence, it would not follow, as a presumption of law, that he had given her authority to sell and dispose of his slaves, and transfer the notes received in payment for thorn. So, in tho present case, although tho husband may have consented that his wife might carry on tho business of the bakery in her separate name, that fact does not create a legal presumption that sho was aafchomed to transfer the notes received from tho sale of tho fixture:,, which In I.vw 'were payable to her husband ; and that they w». transforml In Payment oí a debt contracted by her in the cmi’vje of the separate business, can have no influence, T?r ruostb'v In purely one of authority, so far as sho is concerning muí ad ,,c* do- I..-, on: tin» branch of tho case is, that tho eiroiifusfrv.!cots bwo slated did not amount to presumptive evidouw Shc.r, ulv hs.a -.atboviSy from the husband to transfer the ricter m ;¡ttootío¡!. If was for the jury to say whether this evident;' would fairly bring their minds to this conclusion.

As a portion of the charge given by the court was in opposition to the views we have expressed, the judgment must be reversed, and the cause remanded.

Gibbons, J., not sitting.