Lewis v. Elrod , 38 Ala. 17 ( 1861 )

A. J. WALKER, C. J.

The deed of gift by Moore and wife did not create a separate estate in the complainant. The clause of the deed which declares that the property sballnot be subject’ to tlie husband’s debts, does not have the effect of creating a separate estate. — Gillespie v. Burleson, 28 Ala. 551; Bender v. Reynolds, 12 Ala. 446. But our first married-woman’s law was passed on the first of March, 1848.—Pamphlet Acts of 1847-8, p. 79. The deed is dated in 1849. The complainant married on the 20th December, 1855. There can be no question, that whatever right the complainant may have by virtue of the deed, is her separate estate under the law. This being the case, the bill is appropriately filed by the wife, through her prochein amy; and the husband is, with equal propriety, made a defendant.—1 Dan. Ch. Pl. & Pr. 143 Michan v. Wyatt, 21 Ala. 813; Gerald and Wife v. McKenzie, 27 Ala. 166.

As the bill is filed to protect the wife’s separate status tory interest in personal property, the husband is a mere formal party. It is true that, if he should live until the possession of the property is obtained, he may be entitled to receive' the income as the wife’s trustee, without liability to account for the same. But that prospective right of his is not in litigation in the case. The controversy is between the wife, claiming a separate estate in remainder, and a defendant who claims the absolute title in hostility to her.

Another defendant is Mrs. Wright. She joined with her husband in a conveyance of the slaves to four persons, who conveyed to the defendant Elrod. The conveyance in which Mrs. Wright joined is not alleged to have contained any warranty of title ; but we may infer that it did not contain such warranty, for, in passing upon a demurrer to a bill, we can not aid the bill by supplying averments. The only connection which Mrs. Wright has with the case, is that she is the transferror, without warranty, to the vendors of the person who now holds the property. Whatever interest she may have ever had in the property, was all gone. She had no right or claim of any kind which could be, either directly or indirectly, affected by this suit. She was neither a necessary, nor a proper party defendant. Mims v. Mims, 35 Ala. 23 ; Gunn v. Brantley, 21 Ala. 633; Haley v. Bennett, 5 Porter, 452 ; Batre v. Auze, 5 Ala. 173.

[3.] The two defendants to whom we have alluded, are the only ones who are residents of the chancery district in which the bill was filed ; and the other parties who have an interest in the suit reside in other counties of this State. The Code requires, that in such a case the bill should “be filed in the district in which the defendants, or a material defendant, resides.” — Code, § 2875. The signification- of the word «material” is important. The object of the statute was to prevent, as far as possible, the.imposition upon those charged with the defense of chancery suits, of the burden and inconvenience of litigating in. counties rer mote from their residences. Hence, it was necessary to discriminate between those defendants whose attitude in reference to the case does not make them real participants in the litigation, and those who occupy in reference to the suit the opposite character. The word, material has been employed to describe parties of the latter class ; and it is, perhaps, as apt an. expression for the purpose as could have been found. The material defendant is one who is really interested in the suit, and against whom a decree is sought. Neither of the defendants resident in Wilcox county was a material defendant, and for that reason the demurrer was rightfully sustained; and the chancellor’s-decree is, therefore, affirmed, without passing upon' any other of. the assignments of demurrer... .