Bolling v. Mock , 35 Ala. 727 ( 1860 )

A. J. WALKER, C. J.

One of the questions discussed in this case is, whether a married woman has the election to take property purchased with, or obtained in exchange for, articles of her statutory separate estate by her husband ; there being no joint conveyance of such articles by husband and wife, as contemplated by our act of 1850, and section 1894 of the Code. That question we leave open and undecided.

If a married woman has the right to take property purchased by her husband with her separate estate, it is by virtue of the doctrine of implied or constructive trusts. 2 Story’s Eq. Jur. § 1210 ; Atherly on Mar. Set. 443; Oliver v. Piatt, 3 How. 333-400; Kavanaugh v. Thompson, 16 Ala. 824; Taliaferro v. Taliaferro, 6 Ala. 404. The title which enures to a cestui que trust, by the trustee’s investment of the assets of the trust in other property, results from the equitable doctrine of implied trusts, and can be recognized and enforced only in a court of equity.— 2 Story’s Eq. Jur. § 1080, note 4; Puryear v. Puryear, 16 Ala. 486.

[2.] The latter clause of section 2131 of the Code refers to those cases where the title to the property is legal, and the feme covert has such a title that she might, in the absence of her coverture, maintain an action at law in her own name. To construe it as giving a right of action at law upon a title or interest of a purely equitable character, would go far to break down .the distinction between equitable and legal jurisdictions. This we do not think was the intent of the law. — Pickens and Wife v. Olver, 29 Ala. 528.

Prom what we have said, it follows, that there was error in the ruling of the court below.

The judgment of the court below is reversed, and the .cause remanded.