Perryman v. Greer , 39 Ala. 133 ( 1863 )

A. J. WALKER, C. J.

On^the 23d January, 1845, an act of tbe legislature was passed, which declared tbat, from and after its passage, Sarah Greer, a feme covert, should be capable “of receiving and bolding property by gift, purchase, or inheritance,” as a feme sole; and tbat property thereafter acquired, by gift, inheritance, or purchase, should be free from babibty to ber husband’s debts; and tbat sbe should be incompetent to “ sell and dispose of ” such property, during coverture, except by last will and testament. — Pamphlet Acts, 1844-5, p. 172. When this act was passed, Mrs. Greer was a distributee of tbe estate of ber brother, who died in 1843; and tbe property bad been divided according to tbe written agreement of all tbe dis-tributees, they being adults, and two of tbem being tbe administrators of tbe estate; and tbe share of Mrs. Greer badbeenleft in tbe possession of one of tbe administrators, to await the determination of a cbanoerj suit, instituted before tbe division by Mrs. Greer, to have her distributive share settled upon her. The chancery suit terminated in May, 1845, in a decree settling the property previously allotted in the division above named to Mrs. Greer’s separate use. The equity of the bill in this case depends upon the question, whether the property acquired by Mrs. Greer, as the dis-tributee of her deceased brother’s estate, was, by virtue of the act of 23d January, 1845, incapable’ of alienation, and whether her mortgage of the same was not therefore void.

The right of a distributee attaches upon the death of the intestate. The interest then accrues, and the subsequent division serves to ascertain and define, convert into a legal right, and reduce to possession, an equity which existed before in the form of a chose in action, cognizable in chancery. Therefore, the property which the distributee of an estate receives under the statute of distribution, does not accrue to the distributee by virtue of the division or reduction to possession, but in consequence of a right springing up upon the death of the intestate. The point has been several times so ruled by this court. In Hardy v. Boaz, (29 Ala. 168,) it was decided, that the right of the husband, in reference to an undivided share in a residuary legacy to the wife, was not to be governed by the law of 1850, concerning separate estates of married women; the testator having died in 1842, but the property having been received after 1850. The court remarked, that the interest of the wife vested in her at the death of the testator. In Kidd v. Montague, (19 Ala. 619,) an estate had been in process of administration before the passage of the act of 1st March, 3848, securing to married women their separate estates. The estate was settled after the passage of that act. The court decided, that the form of a decree for the distributive share of a married woman, who was one of the distributees, should conform to the supposition, that the interest did not fall under the operation of the above-named act. See, also, Sharp and Wife v. Burns & Coles, 35 Ala. 653.

Before the act of 23d January, 1845, Mrs. Greer not only had the right of a distributee in the estate of her deceased brother, but that right had been ascertained and defined by a división among the distributees, all of whom were adults, to which the administrators had assented by signing the agreement. The division thus made was a legal one. — Marshall v. Crow, 29 Ala. 278. It is clear, that whatever right Mrs. Greer had to the property accrued to her before the passage of the act of 23d January, 1845. That only affects after-acquired property, and can not, therefore, influence the alienable quality of what was received by her as distributee.

The bill in chancery, which was filed to enforce the wife’s equity, and procure a settlement to her separate use, was not designed to originate a new title to property, but simply to exclude .the marital rights of the husband in property which had already accrued. There is, therefore, no just reason to support the proposition, that the decree in chancery fixes the time when Mrs. Greer acquired the property.

As to the policy and validity of legislation, which deprives a feme covert of all capacity to alien or charge her property except by will, we mean to make no intimation.

We entertain no doubt, that a feme covert is competent, in the view of a court of equity, to convey her separate estate, existing otherwise than under our statute, and to confer a power of sale in her mortgage of it. — Roper v. Roper, 29 Ala. 247; Demarest v. Wynkoop, 2 Johns. Ch. R. 144; Pybus v. Smith, 1 Vesey, Jr. 189 ; Essex v. Atkins, 14 Vesey, 542. As the husband and wife joined in the execution of the mortgage, the property was liable to be sold under it, whether the property belonged, to the husband or wife. Therefore, the bill is without equity, no matter whether the title was with the one or the other; and we will not inquire into the question of right as between husband and wife.

Beversed and remanded.