Bridges & Co. v. Phillips , 25 Ala. 136 ( 1854 )

LIGON, J. —

The bill in this case was filed for two purposes : 1st, to enjoin the sale of the slaves claimed by the complainant as her separate estate from sale under writs of fi. fa. issued on judgments against her husband ; and, 2nd, to reform, if the chancellor esteemed it necessary, the deeds made by Phillips and Anthony, for two of the slaves levied on, so as to make them vest a separate estate in the complainant, which she alleges was the purpose and intention of the grantors at the time they were made. The defendants, Bridges and Stetson, in the court below, demurred to the bill for want of equity, for multifariousness, and because the complainant had a full and adequate remedy at law.

The bill is filed by a married woman, whose separate estate is levied upon for the debts of a third person, and whose trustee refuses to interpose a claim at law, and thus try her right to the property in the law forum; she has no other remedy left her than the assertion of her right, through her next friend, in a court of equity. In this respect, the case is identical with that of Calhoun v. Cozens, 3 Ala. R. 498, in which the bill was held to be well filed. There is no multifariousness. The levy, a sale under which is sought to be enjoined, is by two plaintiffs at law, it is true ; but it is upon the same slaves, and the complainant asserts one title to them all. To require a bill for each creditor, or for each slave, would tend to encourage a multiplicity of suits, which equity abhors.— Larkins et al. v. Biddle et al., 21 Ala. 252; Mitford’s Plead. 181-2; Story’s Eq. PI. § 530. The refusal of the trustee of a married woman to protect her separate estate at law, gives her the right to go into equity, by her next friend, to seek such protection, no other remedy being open to her. — 3 Ala. Rep. 498. The chancellor did not err in overruling the demurrer.

We concur with him, also, in Iris construction of the deeds under which the complainant holds. Those from Phillips and Anthony vest a separate estate in her by their terms, and expressly exclude the marital rights óf her husband. It is true, that the donors limi t tire property, after her death, to “ the heirs of lior body but this does not enure to the benefit of her husband; the only effect it can have is, to vest an absolute estate in the complainant, who is the first taker.

The deed from Clanton, if considered alone in reference to its terms, would have tire same effect. But when taken in connection with the proof, which shows that a part of the purchase money, or the. moans whence it was derived, belonged to the husband, an interest in the slave, to the extent of the purchase money which belonged to and was paid by him, is established, and is unquestionably liable to the payment of his debts. But, inasmuch ns a court of law cannot separate it from that of the wife, it cannot be proceeded against in that forum. The creditor must file his bill in equity for this purpose, Avhen the chancellor will ascertain and separate the interest of the defendant in execution, and by his decree devote it to the payment of the demand of the creditor, whose lien lias been fixed by judgment and issue of execution at law. Fellows, Wadsworth & Co. v. Tann, 9 Ala. 999.

There is no error in the record, and the decree is consequently affirmed.