Alexander v. Saulsbury , 37 Ala. 375 ( 1861 )

R. W. WALKER, J.

A married woman, having a statutory separate estate, sells and delivers to the purchaser a portion, of the same, without the concurrence of her husband ; can she, by suit upon the contract, in her own name, recover of the purchaser the value, or agreed price of the property ?: Our opinion is, that this question must be answered in the negative.

Section 2131 of.the Code provides, that “husband and wife must be joined, either as plaintiffs or defendants, when the wife has an interest in the subject-matter of the suit, unless the suit relate to her separate estate, when she must sue or-be sued alone.” The effect of this section was very carefully considered by the court, in Pickens v. Oliver (29 Ala. 528) ; and it was there held, that the rule established by the latter clause of this section, “must be confined to suits for the corpus of the property, and for damages to the property itself, as distinguished from its use.” This is clearly not a suit “for damages to the property” constituting the wife’s separate estate. If it can be maintained at all, it must be upon the ground, that it is a suit for the corpus of the property. Although all the property of the wife, held by her previous to her marriage, or which she may become entitled to after her mai’riage, in any manner, is her separate estate, and is not subject to her husband’s debts ; yet all such separate estate “vests in the husband, as her trustee, who has the right to manage and control the same, and is not required to account for the rents, income or profits, to the wife, her heirs, or legal representatives.”-C©de,^ 1983. Thus it will be seen, that the corpus of the property, belongs to the wife, while the right to control and manage the same, free from accountability for the rents, income, or profits, is vested in the husband. Section 1984 provides, that “the property of the wife, or any part thereof, may be sold by the husband and wife, and conveyed by them jointly., by instrument of writing, attested by two witnesses.” This provision is obviously restrictive oh the right of disposition, and was doubtless intended to prohibit'the sale of the wife’s property, except such as might be made by the husband and wife. — Smyth v. Oliver, 31 Ala. 43. See, also, Whitman v. Abernathy, 33 Ala. 159 ; Rogers v. Boyd, 33 Ala. 175 ; Drake v. Glover, 30 Ala. 389. We think, therefore, that a transfer of her statutory separate estate by the wife, without the concurrence of her husband, in the manner-provided by the statute, is, in a court of law at least, absolutely void, and. passes nothing to the purchaser-. — See Smith v. Plower, 15 East, 607. The title to the property s.o transferred is in nowise affected thereby, and the property remains, as before, the separate estate of the wife.

By the common law, a married woman can neither sue nor be sued alone, and all contracts. made by her are void. XParsons on.Con. 286. These disabilities, of coverture the Code modifies, but does not destroy. Beyond its express provisions, married momen are no more sui juris than they were before its adoption. — Pickens v. Oliver, 29 Ala. 528. Hence it follows, (so far, at least, as a court of law is concerned,) that a married woman has no legal capacity to contract in relation to her separate estate, except for the purpose, and in the manner, provided by the statute; arid as a sale oí such separate estate, made by the wife alone,, without the concurrence of the husband, is unauthorized by i.the'statute, every such contract of sale is void ; and being ' void, it can form no foundation for a suit at law in the name • of the wife.

It will not do to say, that a married woman, having a separate estate, is capable of electing to have either the property sold, or the value or agreed price thereof; and that, on her electing to receive or sue for such value or agreed [nice, it becomes, her separate estate, in lieu of the properly sold, which she is, by such election, estopped from ever claiming thereafter. If this be so, of what avail would be the provisions of the statute, that the husband shall manage and control the estate, and receive the profits without liability to account to the wife, her heirs, or representatives; and that-no part of the property shall be sold without his concurrence ? Ilf we are to yield obedience to the statute, we must hold, (whenever, at least, the question arises in a court of law,) that a married woman is incapable, by any independent act or contract of hers, of cower ting the curjMs oí her separate estate.

It is t rm* that, in the case of a wrongMoer selling properly without title, the purchaser, while he holds under a contract of sale, cannot resist the payment of the purchase- . money. Duncan v. Steward, 25 Ala. 413. But it never was undeistood, that a person, by contracting with a . married woman, admitted her right to-sue in her own name -on the contract, or precluded himself iron pleading her ..coverture in bar of such a suit. On..the contrary, the rule of the- common law is, that it the .wife sell any thing, her .-husband alone has the right to recover the price. — 1 Parsons on Contracts, 286-7.

As the rulings of the circuit court were in conflict with these views, the judgment must be reversed, and the cause remanded.