Cowles v. Morgan , 34 Ala. 535 ( 1859 )

A. J. WALKER, C. J.

The argument against the equity of the complainant’s bill is, that a married woman’s separate estate, existing by virtue of our statutes, can not be charged by her with the payment of her debts generally ; and that it does not appear from the bill whether the' separate estate of the feme-covert defendant was secured to her by contract, or is held under the statute. It is not necessary for ns to decide upon tbe former of tbe two propositions of tbe argument, because tbe latter is altogether untenable. ¥e therefore leave tbe question of tbe liability of a married woman’s separate estate held under our statutes to her debts, other than those described in section 1987 of tbe Code, open and undecided; and when tbe question shall hereafter arise, 'we will not, in investigating it, regard ourselves as trammeled by the incidental remark in Durden v. McWilliams, 31 Ala. 438.

[2.] The bill avers, that tbe married woman hold^the described property “to her sole and separate use.” This averment distinguishes her estate from that which is vested by our statutes. It is the characteristic of separate estates at common law, that they were held to the sole and separate use of the feme covert. The husband had no right, as against his wife, to control and manage such estate, or to receive the rents and profits, and the wife is as to it regarded as a feme sole. — Roper v. Roper, 29 Ala. 247; American H. M. Society v. Wadhams, 10 Barb. 597 ; Willard’s Eq. 652, 645, 646, 647; Jacques v. Methodist Epis. Church, 17 Johns. 548; Hooper v. Smith and Wife, 23 Ala. 639 ; McCroan v. Pope, 17 Ala. 612; Firemen’s Ins. Co. v. Bay, 4 Barb. 407 ; Strong v. Skinner, ib. 546 ; Colvin v. Currer, 22 ib. 371-384; Brandon v. Robinson, 18 Vesey, 434; 2 Story’s Equity Jur. §§ 1391, 1392.

The separate estate existing by virtue of our statutes, is not “ held to the sole and separate use of the feme covert.” The husband has the right to control and manage it, and to receive the rents, income and profits, without liability to account therefor, unless he is deprived of the trust on account of incapacity or unfitness. — Code, §§ 1983, 1994. Property in which the husband has such rights, is not held to the sole and separate use of the wife ; for, if held to the sole and separate use of the wife, the husband has no interest in it, and no right of control over it. Albany Fire Ins. Co. v. Bay, 4 Comst. 9-11;, Colvin v. Currer, supra.

[3.] The estate described in the bill being' a separate estate at common law, there can be no doubt, under our decisions, that tbe note executed by the wife, jointly with her husband, was, upon the facts stated in .the bill, a charge upon the property. — Caldwell v. Sawyer, 30 Ala. 283; Shepherd’s Digest, 275, §§ 52-59.

[4.] Upon the facts alleged in the bill, which the defendants must be regarded as admitting by suffering a decree pro confesso to be rendered, the property ordered to be sold belonged to Mrs. Cowles, and any surplus of the proceeds of the sale which may by possibility remain after payipg the costs and debt, will also belong to her. The decree is, therefore, erroneous in giving direction for the payment of.such surplus to the husband and wife. For this error, the decree must be reversed, and a decree must be here rendered, conforming in every respect with the decree of the chancellor, except that’the register must be ordered- to pay over any surplus which may remain, after discharging the costs of the court below, and the debt and interest thereon, to Mrs. Cowles. The appellee must pay the costs of this court.