Bell v. Bell's Adm'r , 37 Ala. 536 ( 1861 )

A. J. WALKER, C. J.

When this case was before in this court, we announced the principle, applicable'to cases governed by tbe common law, that the. wife-can not possess •personal property ; that her possession is the possession of the husband, and that this principle resulted from the unity of husband and wife. It is not the same principle which applies to the relation of mortgagor .and mortgagee, and of •landlord and tenant. In those cases, the doctrine that the 'possession of the one is the possession of the other, grows out of the law.of estoppel. The possession of the wife is the possession of the husband, because hét legal existence is merged in his, and the wife is positively incapable oí a possession, in tbe eye of the law, distinct from that of the husband. From this principle it. is 'an inevitable deduction, that the law deems the husband of Mrs. Bell to have been, through her, in possession of the property in contro»-versy up to his death, f This being the case, there was-no antagonism of possession on the part of Mrs. Beil to her husband. It is not contended, and indeed it could not be, ' either upon authority or reason, iMt the presumption^ which is drawn for the quieting of titles from the lapse of time, is permissible in the absencenf any enjoyment of the right asserted antagonistical to that 'sought to be barred. J For these reasons, we think it clear, that the possession of Mrs. Bell could never give her a ’title as against her husband. Suppose it were admitted, that tbe possession of Mrs. Bell, under a clai?n of title in herself, would vest her '•■with a title; the title, when derived under the common law, would enure to the husband; 'and thus we would have the wife’s antagonistic possession divesting the husband’s title, which would by operation of law be revested in the husband. ' We do not intend, in any thi'ñg We have said, to infringe "the doctrine, that in equity the Wife is deemed, as to her ’ separate estate, a femme sole. It may be that, if a wife Were in possession of property, claiming openly that it was conveyed to her as a separate estate, so as to exclude the husband’s marital rights; and if -she had continued to possess and enjoy the property, under .such claim of it ash separate estate, for more than twenty years, the law would presume, against the husband, that the claim was founded on a valid conveyance creating a separate estate. lu a court of equity, the wife is allowed to assert her claim to-a separate estate in-antagonism of her husband’s’rights. But those principles can not aid the charge given. It raises the presumption, not upon the fact of the long-continued assertion by Mrs. .Bell of a-daim.that the slaves wore conveyed to her-as a separate estate, but upon the. tact that she was. deserted by her husband, and claimed and possessed the slaves “as her own individual property.” There is a clear distinction between the claim of a separate estate, created in such a maimer as to’ exclude the husband’s marital rights, and a naked claim of title in the wife against the husband. A wife may claim that a separate estate was vested in her. She can not, claim that she holds property in possession adversely to her husband, except upon the ground that it is a separate estate; for her possession, except so far as chancery recognizes her right to hold a separate estate, and confers upon her, in reference to such estate, the privileges of a femme sole, is the possession of the husband. The possession by Mrs. Bell, claiming that the slaves belonged to her, and .that she held them adversely to her husband, no matter how ’long, could never avail, An adverse possession, or an antagonistic enjoyment, for twenty years, may create the presumption of a title, in favor of persons sui juris. It neve» can create the presumption of a title in the wife, clothed with the quality of an exclusion of the husband’s marital rights. If the absurdity could be conceived, of a wife’s holding adversely to her husband, what reason or authority is there to support the position, that she thereby not only acquired a title, but a title of such a character as to exclude the husband ?

There was no evidence conducing to show that Mrs. Bell ever claimed to hold the slaves under any conveyance which created a separate estate. The court, therefore, erred in refusing the charge asked by the defendant, as well as in the charge given.

Reversed and remanded.