Pickens v. Oliver , 32 Ala. 626 ( 1858 )

WALKER, J.

This suit was originally brought in the name of Margaret C. Pickens, as the sole plaintiff. Her husband was subsequently, by amendment, made a co-plaintiff with her, A motion was afterwards made, at another term, to amend the .complaint, so as to leave the husband the sole plaintiff upon the record, suing in the capacity of trustee for his wife. This motion was properly overruled. The effect of allowing an amendment, by which the name of the husband was added, and then allowing an amendment by which the name of the wife was stricken out, would have been, in an indirect manner, to strike out the name of the sole plaintiff, and insert the name of a new plaintiff. This, it was decided in Leaird v. Moore, 27 Ala. 326, could not he done directly ; and the same rule must prevail, when the attempt is made to effect the same object by two distinct amendments at different terms of the court. — Friend v. Oliver, 27 Ala. 532.

[2-3.] The uncontroverted proof in this case is,-that the feme covert plaintiff had a .separate estate, created by deed, in the slaves for the recovery of which the suit is brought; that the deed creating the separate estate appointed no trustee ; and that the husband had been in possession of the property for several years under the deed. When this case was before in this court, it was decided, that, upon those facts, the right of action was in the husband alone. Pickens and Wife v. Oliver, 29 Ala. 528. That decision is the law of this case, and absolutely and necessarily conclusive of it.

The question here is not, whether the husband reduced the property to possession as husband, but whether or not he reduced it to possession as trustee by virtue of his being the husband. The class of cases which hold, that the marital rights of the husband do not attach where property is given to a married woman by words which do not create a separate estate, but the husband nevertheless, receives and holds it during life as her separate estate, uniformly disclaiming any right in himself, have no application here. — Machem v. Machem, 28 Ala. 374; Jennings v. Blocker, 25 Ala. 415; Lockhart v. Cameron, 29 Ala. 355; Betts v. Betts, 17 Ala. 787. The question here is not, whether the marital rights of the husband attached. It is very clear that they did not, because a separate estate was vested in the wife. The question is, whether the husband ever had possession by virtue of the trust capacity attaching; to him as husband. The testimony shows that he did have such possession.

The judgment of the court below is affirmed.