Molton v. Martin , 43 Ala. 651 ( 1869 )

B. F. SAFFOLD, J.

If the land sought to be subjected to the payment of the note is the separate estate of Mrs. Molton, by contract, and not by statute, the note given by her is valid, in equity, and a charge on the land.—Cowles v. Morgan, 34 Ala. 535. If it is her separate estate by statute, the note, not being witnessed by two persons, is not a charge on it, and the land cannot be subjected to the payment of it under this bill.—Revised Code, § 2373; Warfield v. Ravesies and Wife, 38 Ala. 518.

The deed conveys the property of Mrs. Molton to her sole and separate use and behoof. Before the Code, the terms of this conveyance would have excluded the marital rights of the husband, and given the wife such an interest in the property as she could have charged by her simple promissory note. But § 2371, Revised Code, makes all the property of the wife, held by her previous to the marriage, or to which she may become entitled after the marriage, in any manner, the separate estate of the wife, not subject to the payment of the debts of the husband. Is there such an opposition in the terms of the deed and those of the statute, that both cannot stand together ? What is the difference between the separate estate of the wife, not subject to the payment of the debts of the husband, and an estate of the wife to her sole and separate use and be-hoof ? Is there such an evident intention expressed in this deed to change the tenure of the estate, as to overcome the denial of the answer that such was the intention with which it was received, and the fact that the money invested in the land was the statutory estate.

Can the husband and wife convert her statutory estate into an estate by contract ? Would not the attempt to do so, be such a contracting with each other for the sale of property as is forbidden by § 2374 of the Revised Code ? The law for the protection of the property of married women, is of little consequence, if its operation can be avoided at pleasure by husband and wife.

We decide that the note is not a charge on Mrs. Molton’s separate statutory estate, and that the land is her statutory estate to the extent of her interest in it.

The decree is reversed, and the cause is remanded, that such further action may be taken as the parties may be advised is proper.