Jenkins v. McConico , 26 Ala. 213 ( 1855 )

CHILTON, C. J.

—We shall first ascertain the legal effect of the deed from John Williams to his daughter Janette Jenkins. Did it vest in her a separate property in the slaves therein mentioned? We are satisfied, upon a careful analysis of the vvhole instrument, that such was the'intention of the grantor, and that according to the construction of such instruments by the courts of Virginia where the deed was made, such was its legal effect there at the time of its execution. It is manifest from the face of it that it was drawn by an illiterate and inexperienced draftsman, and such instruments should not be subjected to those rigid rules of legal criticism, which might properly enough be applied in the construing of more formal and technical instruments. The great point to be attained in the construction of all written instruments, is to arrive at the true meaning and intention of the parties to them, and-, if that intention be lawful, to give effect to it.—20 Ala. 710; 22 ib. 433.

In this ’deed, the father gives to his daughter, then a married woman, and the lawful heirs of her bo.dy, the slaves in controversy, forever, to the proper use and behoof of said daughter and her heirs as aforesaid, and binds himself, his heirs, &c., “ to make the above named property a clear and undoubted a right, as much so as can be made by word or deed, from the claim and claims from every person or persons whatever, to my daughter and her lawful heirs as above mentioned.”

It is true, that the law favors the marital rights of the husband ; and in order to exclude him, there must be a clearly expressed intention. The language used should be such as to fqrbid speculation as to what the probable object of the donor might have been.—Pollard v. Merrill & Eximer, 15 Ala. 174. In the language of Judge Story, “ the purpose must clearly appear beyond any reasonable doubt, otherwise the husband will retain his ordinary legal marital rights over it.” — 2 Sto; ry’s Eq. § 1881. At the same time, however, it is well settled, that no particular language or form is necessary to create a separate estate in a married woman : it is sufficient if, from the whole instrument by which it is limited, the intention clearly and unequivocally appear.—Cuthbert v. Wolfe, 19 Ala. 373; 17 ib. 232. In the case before us, the donor gives the property to his daughter, and to the heirs of her body, to the proper use and behoof of said daughter, and binds himself to make -her title as clear and undoubted as could be done by word or deed — a right free from the claim of every person whatever, and, of consequence, from the husband’s claim. It would be difficult to find language more comprehensive than the donor here uses. True, it is inserted somewhat informally, as a species of warranty in a deed of gift, which, being voluntary, is perhaps nugatory; but it serves to explain the other portions of the instrument, and to show that the intention was to exclude every one from claiming and enjoying any right to the property except his daughter, to whose proper or particular individual use he gives it. See Griffith’s Adm’r v. Griffith, 5 B. Mon. Rep. 113. It would seem absurd to say that he bound himself to vest the right in his daughter, to her proper use, free from the claims of all and every person, and consequently from the husband’s claim, and at the same time gave the property to the husband. It is evident that the donor points to the husband, and the manner in which he is conveying the title, and not to any supposed defect in the title growing out of his want of ability to confer a good one. He is to make her such title as will secure the property to her proper use, exclusive or free from the claims of every other person — the right is to be, in this respect, “ as clear and undoubted as could be made by word or deed.” It would, we think, among the illiterate, be very difficult to find language more expressive of an intention to give the property to the daughter, and to exclude the husband as well as every one else.

As to the effect of the deed from Richard Jenkins and wife (Janette) to J. P. Camden and Samuel T. Williamson, we have bad some difficulty, and find some conflict of authority.

Before, however, proceeding to discuss this point, it is proper to observe, that the objection insisted on by the counsel for the appellee, that it was not proved to have been executed by Mrs. Jenkins, cannot be sustained. The appellee introduced the copy of the deed, and read it to the jury himself, not as the deed of the husband only, but as the deed of the parties whose names appear attached to it. The bill of exceptions states, in enumerating the items of proof made by, the parties respectively, that the second item of proof offered by the plaintiff below was, “ The copies attached as exhibits to the interrogatories, which were admitted in evidence, in lieu of the originals, by consent of the defendant’s counsel. The defendant also admitted, that the originals of said copies had been executed, proven, acknowledged, and recorded, as endorsed and certified on said copies.” Having introduced and read them to the jury, generally, without any attempt to limit their effect as proof, the appellee cannot now be heard to say they were not proved. He conceded their genuineness by reading them ; nor is the concession at all restricted by the admission on the part of the counsel for the defendant in the court below, “ that the originals of said copies ha'd been executed, proven, acknowledged, and recorded, as endorsed and certified on said copies.” This has reference to the registration of the instruments. It was an admission obtained for the benefit of the plaintiff below, designed to enlarge the effect of his proof, and not to limit the operation of the deeds, or to question their genuineness.

Let us proceed to consider its legal operation, as respects the rights of the parties before the court.

The action is trover, by the administrator of the wife, against the husband, to recover for the conversion of slaves in whom, as we have shown, the wife had a separate estate, secured by the deed of gift from her father. This deed purports to convey these slaves to Camden and Williamson, in consideration of the love and affection which Richard, the husband, and Janette, the wife, bore towards their daughter, Ann Richard Jenkins, and for any child or children thereafter to be born, to have and to hold to the said Camden and Wil,-liamson forever, &c., “intrust, nevertheless, that they shall permit the said Richard Jenkins and Janette, his wife, during their natural lives, or the natural life of the survivor of them, to remain in quiet and peaceable possession of said slaves and their future increase, &c., and to take the profits thereof to their own use during their lives.”

If wo concede the right and the capacity of the parties to convey, the effect of the deed would be, to vest the legal title in the trustees named in it, and the beneficial interest in the husband and wife during the coverture ; and if the wife survived the husband, she would be vested with the complete title, as the trust, in that event, would be fully executed, nothing remaining for the trustees to do ; but upon the death of the wife, the husband surviving, the title remains in the trustees, in trust for him during life, and after his death for the personal representatives of tlio wife.

The question then arises, Is the deed valid ? Can husband and wife join and make a valid deed, transferring her separate property in chattels to a third party, which can be set up by the husband, after the death of the wife, in a court of law? In other words, can the wife create an interest, by deed, pending the coverture, in favor of her husband, in her separate personal estate, which can be regarded by a court of law?

I have been not a little perplexed in looking into the authorities to find the question left by them in so much uncertainty and doubt.

Whatever may be the doctrine as held by some of the States in the Union, it is now well settled in England, and is so held by the Supreme Court in this and some of the other States, that a feme covert, with respect to her separate estate, is to be regarded as a feme sole. The doctrine asserted by Lord Chancellor Thurlow in Fettiplace v. Gorges, (1 Ves. Jr. 46; S. C. 3 Bro. Oh. Rep. 8,) that where personal property is given to a married woman to her sole and separate use, it is subject to all the incidents of property vested in persons sui juris, among which is they ms disponendi, is generally received, and we think correctly, as a just and proper exposition of the law upon this subject.—2 Bright on Hus. & Wife 220; Jaques v. Methodist Episcopal Church, 17 John. 548; 20 Wend. 570; Roper on H. & W. vol. 2, p. 182; Vizonneau v. Pegram, 2 Leigh 183; Lee v. Bank U. States, 9 Leigh 200.

In order to pass the title to the wife’s real estate, by the common law, it was necessary that she and her husband should join in levying a fine ; and in England, since the act abolishing fines and recoveries, (3d and 4th William IV. ch. 74,) married women are enabled, with the concurrence of their husbands, and in certain cases without such concurrence, to dispose by deed, or relinquish any estate they may have, as effectually as they could do if sole; provided, such deed be acknowledged by her on privy examination before some officer pointed out in the act; and similar acts, providing for validating the deeds of femes covert upon acknowledgments taken after previous examination apart from the husband, have been passed in most (if not all) of the States. These are enabling statutes, conferring upon the wife a power which she did not before possess, and were not designed to take away any power which she previously possessed of making a valid disposition of her separate personal estate. Such we regard the statutes of Virginia, requiring a privy examination of the wife as a pre-requisite to her making a valid conveyance of her realty.—See Rev. Code of 1819, p.365, §15. Gifts, by deed, or otherwise, by a married woman of her separate personal estate, remain unaffected by the statute, as respects the rights of the parties to them, and as between the parties themselves.

We refer to this mode, pointed out by the statutes, by which married women, in conjunction with their husbands, can pass the legal title to their real estate, and which is but the substitute for the common-law mode of fine and recovery, merely to show the anomaly which would exist, if there was no method of passing the absolute interest in the wife’s personal chattels. As such property so often changes hands ; — so often consists of articles of merchandize, and commodities which must needs be sold or exchanged, or become of little or no value, — it would bo. very remarkable if they could not be disposed of, so as to vest the right in the purchaser ; and not less anomalous to hold that each purchaser or person who acquires the right from the wife must be driven into a court of equity, or be liable at law for a conversion ■ of the property and damages.

The distinction which exists between dispositions of real and personal estate by married women, as respects the neces-. sity of a private examination apart from their husbands, is very correctly alluded to in Lee v. The Bank of the United States, 9 Leigh 200; and in the views taken by the learned judges in that case, we fully concur. It it very clear, that no such examination is required to render the transfer of her separate personal estate available.

We fully concur with the learned counsel for the appellee, that a married woman can enter into no contract upon which she can be charged in a court of law ; and this irrespective of whether she has a separate estate or not. The great case of Marshall v. Rutton, 8 Term R. 547, has settled the law in England, and this case has been followed generally in this country. That was an action of assumpsit against a married woman for goods sold and delivered. The other cases referred to by the counsel show like efforts to make the wife liable, at law, upon her contracts. This, we concede, cannot be done. But it by no means follows, because she cannot create a debt, or incur an obligation, which can be made the ground of action at common law against her, or charged by legal process against her separate estate, that she may not transfer a legal right to another, or such a right to the enjoyment of her personal property, which she owns separate and distinct from her husband, as a court of law will regard and xiphoid. It is conceded by all, that she may dispose of such property by will; why not in any other manner by which such property is ordinarily transferred ? True, if she make the disposition by deed, she is not, at law, liable upon the covenants contained in it — no action can be maintained at law against her upon it; but it is effectual to pass all the interest she has, and she has the unlimited right of disposition, as though she were sole.

In relation to' this point, Mr. Roper, in his work on Husband and Wife, page 229, holds the following language: — “ It having been once established, that a married woman might lose that character, and act at kw, by circuity through the intervention of trustees, as a single woman, in regard to real or personal estate settled to her separate use and disposition, a court of equity, disengaged from legal forms, went further, and held that it would supply the omission of trustees, and raise a trust upon the apparent intention ; so that, whether there be trustees or no trustees appointed, a married woman is now competent, at law or in equity, (although contrary to the rules and principles of the general common law,) to take and dispose of property limited to her separate use as a feme sole.” And on page 240 the same author says, “ Where property is limited to the separate use of a married woman generally, without giving to her any particular power of disposition, she may sell, pledge, or encumber it, in ihe same manner as if she were a feme sole

In the case of Dewey v. Bayntun, 6 East 257, it seems to have been‘conceded by the court, that the husband and wife might contract pending the coverture through the medium of trustees, she purchasing with proceeds of her separate property certain furniture, pictures, and statuary belonging to him. The question, on which the rule for á new trial was made absoluto, was, whether there was not such inadequacy in the price to be paid as stamped the transaction as fraudulent and a device to defeat the claims of the creditors. If, however, the parties could not have contracted, in the view of a coui't of law, in reference to the wife’s separate property, the court should have made the case turn upon that point, and have readily disposed of it by that objection, which met it at the threshold. In commenting upon this case, Lord Eldon said, “From the only account I have had of it, it appears to have been asserted, that a husband and wife could not, after marriage, contract, for a bona fide and valuable consideration, for a transfer of property from him to her or trustees for her. The doctrine is not so, either here or at law."—Lady Arundell v. Phipps, 10 Ves. 148; Bright on H. & W. 109.

In Wright v. Rutton, 2 Ves. E. 673, the Master of the Eolls takes the distinction between an assignment in trust by indenture, executed by husband and wife, for the benefit of the husband, of personal property bequeathed to the wife in the hands of the executor, and such an assignment of her separate estate, thus — “ The clear distinction is, that in point of law and the consideration of this court, a married woman has no disposing power, although she has a disposing mind. As to any property she has, tho law and this court consider her so much undci’ the coercion of her husband, that she cannot exercise any disposing power ; with this exception, that though at law she is totally devoid of any property, any person may make her a feme sole as to particular property he gives her J but as to any other property which the donor has not given to her sole and separate use, she is a person having no disposing power; and the husband cannot, in any way, act with regard to any property in a'trustee for her, or dispose of it, without the intervention of this court, as he may upon choses in action”, <fec.

Suppose, in the case before us, the slaves had actually been delivered to tho trustees named in this deed, and a stranger had takou them out of their possession; could not the trustees have maintained an action at law for their recovery, for tho purposes of carrying out the trust reposed in them ? It is certain that they could. Yet their right would have been derived from the married woman ; and whether from the deed or the delivery, makes no difference: it is still her act, or disposition of thorn, which vests the title or right to maintain the action.

Upon tho whole, without citing further authority, we are of opinion, that Mrs. Jenkins had the right, either with or without her husband, to make any disposition of these slaves which she could have made had she been a single woman ; that she had a right to give them to her husband, or to create by deed, as she has hero done, a trust or use in his favor ; and that the personal representative of the wife cannot, in a court of law, in the face of this deed, recover the slaves of the husband. That the husband, who was the wife’s equitable trustee, joined in the transfer, makes no difference. The agreement, so far as the wife was concerned, was executed, and the property is where a court of chancery would place it, if the husband resorted to no coercion or undue influence to obtain the transfer or deed. This is not an attempt, therefore, to charge tho wife, or her representative, upon her contract ; but the husband alleges his possession to be lawful, not tortious, being secured in the use by the solemn act of his wife, upon which ho lias a right to repose. His possession and refusal to surrender the slaves is consequently no conversion.—See McCroan v. Pope, 17 Ala, 617; McGowan v. Young, 2 Stew. & Por. 160; Lowremore v. Berry, 19 Ala. 130.

We see no reason why the wife may not dispose of her separate personal estate, as well by deed, as by writing not under seal, or by parol. The only effect of either mode of transfer is, to vest the property in the person to whom it is transferred. The wife is not personally chargeable, at law, upon any such contract; but, when executed, it is operative to pass her interest. It is also readily conceded, that where the title is vested in trustees for the separate use of married women, they can only transfer an equitable interest, and not one which, at law, can over-ride the title of the trustee.— Puryear v. Puryear, 14 Ala. 121. But in this case, the donor conveyed the property to the wife herself; and if we concede that she could not, by reason of her coverture, take the title at law, yet it would vest in the husband, he consenting to it; and he is a party to the conveyance by which his present use is secured.

In Hooper’s Ex’r v. Smith and Wife, 23 Ala. 639, we held, that under the act of 1848, securing to married women their separate estates, a feme covert may sell, charge, or dispose of her property without the consent or concurrence of her husband. She need not resort to a court of equity for power to sell her personal chattels. She has the power to sell and dispose of them precisely as if sole; and it were vain to say she has the power and right to sell, and yet deny her the power of vesting a right in the purchaser. We decide nothing as to her power over her real estate, as that question is not involved.

The case cited by the counsel, of George v. Goldsby, 23 Ala. 336, has no reference to the separate estate of the wife, and consequently is not opposed to the views we have above expressed. Neither will we say, that where the property is vested in trustees, she can transfer a legal right to it. All we decide is, that where personal property is conveyed directly to the wife, to her sole and separate use, she and her husband can, by their joint deed, vest the legal title in trustees for their use and the use of the survivor for life; and that such deed may be set up by the husband who survives the wife, to defeat the action of trover brought by the personal representative of the wife.—See, as to the wife’s power of disposition, McCroan v. Pope, 17 Ala. 617.

But it is said, this deed was never delivered, that the trustees never accepted the trust, and that there was no delivery of the slaves. To this we answer, it was admitted that the deed was executed, which implies a delivery. It was, moreover, introduced and read, as we have before stated, without objection, and as against him who read it, the opposite side has the right to regard it as legal testimony, and as available to the full extent of its legal effect as a valid subsisting deed, having been offered without restriction as to its effect as testimony. The execution of the deed rendered it unnecessary to make any formal dcliveiy of the property. The law, moreover, does not require the mere useless ceremony of having the property delivered by the husband and wife to the trustees, that it might be delivered back immediately to them. That the trustees both executed the deed, is evidence that they consented to act and accepted the trust. As to the execution of the deed, see Puryear & Wallace v. Beard, trustee, 14 Ala. 121.

As to the two slaves sold by the husband while they were the separate property of Mrs. Jenkins, and before the deed by her and her husband to the trustees, we need only remark, that the wife's right of action was suspended during the coverture. If she had survived her husband, we entertain no doubt that she might have sued his personal representative for the conversion, if she did not expressly or impliedly consent to such disposition ; and since death has terminated the coverture by her decease, we see no reason why her personal representative may not bring the action. If there be equitable sets-off, the party who insists upon them must go into equity for their allowance. We think the cases in our own court furnish abundant authority for sustaining the action. See Cook v. Kennerly, 12 Ala. 42; Puryear v. Puryear, ib. 13; 16 Ala. 491; Gunn v. Barrow, 17 ib. 747; Randall, adm'r, v. Shrader, 20 ib. 338; Powell v. Glenn, 21 ib. 458; Knight v. Bell, 22 ib. 198.

As to the damages : The true measure of damages, in an action of trover, where the thing converted has a fixed value, is that value at the time of conversion; and the jury may give interest upon it. If the Rvalue is fluctuating, the jury may take its highest value at. any time between the conversion and the trial.—Strong v. Strong, 6 Ala. 345; Tatum v. Manning, 9 ib. 149; Lee v. Matthews, 10 ib. 688-9; Ewing v. Blount, 20 ib. 694.

Let the judgment be reversed, and the cause remanded.