Whitman v. Abernathy , 33 Ala. 154 ( 1858 )

STONE, J.—

It isnot rendered necessary, by anything in this record, that we should determine whether a married woman who is a minor, and who has a separate estate created by law, can unite with her husband in a joint deed, and thus convey a valid title to her property. Neither is it necessary to determine whether the failure to prove and record such deed, “ in accordance with the requirements of the laws now in force regulating conveyances of real estate,” invalidates such title. Nor do we now determine whether an adult married woman, having a separate estate created by law, can convey such estate in any other manner than that provided by the act of 1850, § 5, and the Code, § 1984.

The conveyance relied on this case, was executed by Mrs. Abernathy when she was a minor. It is not clearly shown whether the bill of sale was executed before or after January 17, 1853, the time when the Code went into operation. The testimony of Miss Tilman leads us to the conclusion, that it was before the 17th January, 1853, and hence must be governed by the act of 1850.—See Durden and Wife v. McWilliams & Smith, 31 Ala. 438. Whether governed by the act of 1850 or by the Code, the conveyance in this ease would be alike invalid. However the law in regard to adult married women may be, we are satisfied that minors can only make a binding conveyance of their separate property, if indeed they can make such binding conveyance, by conforming substantially to the requirements of the law.

The act of 1850 empowers husband and wife to convey away her separate property, by their joint deed.—Pamph. Acts, 64. There is neither an averment nor proof in this case that the conveyance was by deed. The Code (§ 1984) permits husband and wife to convey the property of the .wife-, jointly, by instrument of writing, attested by two witnesses. The bill of sale in this case had but one witness.

[2-3.] The objection that the complainant in this case had an adequate remedy at law, and that her bill is multifarious, cannot be sustained. If she had sued at law, under section 2131 of the Code, the property, when recovered, would have gone into the control and possession of her husband, as her trustee, who would have been entitled to the rents, income and profits. To give her adequate relief, it was necessary to have her husband and faithless trustee removed. This rendered a resort to chancery necessary, and proves the propriety of joining Mr. Abernathy as a party defendant, and also proves the propriety of seeking and obtaining relief against each defendant.

[4.] In one particular, the decree of the chancellor must be reversed. The complainant has no claim for the hire and profit of the labor of the slaves which accrued before the decree removing her husband from the trusteeship of her property.—Act of 1850, § 4. Her claim for maintenance pending the litigation is not presented by this record. It is not necessary in this case to announce, nor do we announce, what would be our opinion on the right of the wife to recover hire, if in this case the chancellor had, pending the suit, enjoined Mr. Abernathy from intermeddling with the property, under section 1996 of the Code. The bill being filed after the Code went into operation, the rights of Mrs. Abernathy, in this connection, are probably governed by the Code.—§ 1997; Durden and Wife v. McWilliams & Smith, 31 Ala. 438. No such order was made in this case; and, of course, the question does not arise. No injunction having issued against the husband, enjoining him from intermeddling with the estate, her right to the hire depends on the order removing him as trustee, under sections 1994 and 1995 of the Code. The'complainant, having herself no right to the hire or profits of the labor of the slaves, cannot recover the same, although Whitman may have had no light to them. .

[5.] We hold there was no error in ordering the defendant 'to pay for the slave Scott, who died pending.the litigation. This right rests on the following principle: Although Mr. Abernathy, up to the time of his removal, was the trustee of Mrs. Abernathy’s separate estate, and as such entitled to the rents, income and profits of the same without liability to account therefor; yet, as such trustee, he had no authority to sell the trust property. The sale made by him was a breach of the trust, and conferred no right on Mr. Whitman to possess and enjoy the property. Having no right to the property, he is accountable for injury or loss of the property in his hands, as any other tortious or wrongful holder would be. Unlike the question of hire, Mrs. Abernathy’s right to the corpus of the property was all the time complete; and hence her right to recover for the slave which died in Whitman’s hands.

The decree of the chancellor, so far as it directs an account of the hire of the slaves from the filing of the bill, is reversed. In all other respects it is affirmed. Let the costs of the appeal be paid by complainant’s next friend.