Lyles v. Clements , 49 Ala. 445 ( 1873 )

PETERS, C. J.

— The question first presented for solution, in this case, is that arising on the demurrer to the first plea, which demurrer was sustained by the court below. This plea is evidently drawn without any considerable regard for technical accuracy of form. It has no prayer, as it should have in such a case. Rev. Code, § 2641. And without this, whether it is intended as a plea in abatement, or a plea in bar, is by no means easy to determine. As a plea of coverture merely it is a plea in abatement; and as such, it should be verified by affidavit. Rev. Code, § 2640; Story’s Pl. p. 13; 1 Bac. Abr. pp. 1, 18; 1 Chitt. Pl. p. 434; 25 Ala. 438. The demurrer does not point out the defects of the plea. It does not state any grounds of objection. Rev. Code, § 2656. But it may be presumed that, as it was pleaded with other pleas in bar, it was intended as a plea in bar. Such a plea must be construed to mean, that the plaintiff cannot maintain any suit, at any time, upon the cause of action set out in the complaint. 1 Chitt. Pl. pp. 434, 460 et seq.

The cause of action declared on in this case is a contract for the payment of ■ a sum of money, made by the defendant with the plaintiff, for the rent of land, which is shown by the evidence to have belonged to the plaintiff as a part of her separate estate. The defendant does not deny this, and his plea in effect admits it. But he insists that such a contract cannot be enforced by her; which is, in effect, to insist that the contract is void, or that the plaintiff has no legal right to recover on it. I so understand the argument of the learned counsel for the appellant, in objection to the demurrer. This could not be made an objection at common law, if the principles of that system are intended to be invoked; because, at common law, the wife could deal with her separate estate, so far as the personalty and the rents of the realty were concerned, as a feme sole; unless some clause in the settlement or gift limited her powers. Vizonneau v. Pegram, 2 Leigh, 183. Without our statute, her contract to rent her lands would be valid and sufficient. Then, does the law of the Code limit her powers over her estate in this particular ? Under it, has she now the power to rent her lands of her separate estate ? Under our law, the rents, income, and profits are a part of the separate estate of the wife. The husband may, nevertheless, control these assets; he may use them, and squander them, if he chooses, without accounting with her or with her representatives for the same. Rev. Code, § 2372. But this does not amount to an absolute gift to him, or wholly exclude her right of use over this portion of her estate. The wife’s whole separate estate, not exempt from sale under legal process, is liable to the satisfaction of her debts contracted before marriage, and also on all contracts for articles of comfort and support of the household, under the circumstances prescribed in the Code. To pay her debts, and support her household out of her separate estate, are duties imposed by law on her estate. To perform these duties, she must stand on the same powers that would be necessary and proper for any one else, standing in her place; just as her husband would stand, were like duties imposed on him. Short of this would be short of justice 'to her. The husband’s power over his estate, to pay his debts and to support his household, is that of a sovereign. It is absolute. Crawford et al. v. Kirksey et al. June Term, 1872; 8 Wheat. 242; Harkins et al. v. Bailey et al. June Term, 1872; 2 Kent, 326. And what Chancellor Kent says of marriage settlements may be not inaptly applied to this law of the wife’s separate estate. It is benignantly intended to secure to “ the wife a certain support in every event, and guard her against being overwhelmed by the misfortunes, or unkindness, or vices of her husband.” 2 Kent, 164, 165, 166. It is scarcely necessary to attempt any discussion of the husband’s claim to the rents, income, and profits of the wife’s estate, in this opinion. The husband sets up no claim to these in this suit. Doubtless, he may relinquish or give to the wife all his claim to the rents, income, and profits of her estate. Goree v. Walthall, 44 Ala. 161; 2 Kent, 163; Slanning v. Style, 3 P. Wms. 334; Rich v. Cockrell, 9 Ves. 369; also, Neufville v. Thompson, 3 Edw. (N. Y.) Ch. R. 92, and 1 Dev. Eq. Cas. 187. If the husband does this, and this is to be inferred from the fact that he brought the suit in her name, it then becomes the property of “ the wife,” to be held under the system instituted by the Code. It becomes a portion of the corpus of her separate estate. Rev. Code, §§ 2371, 2382, 2388. When this is the case, there can be no doubt of her right to sue for it, and recover it in her own name, as property that “ relates to her separate estate.” Rev. Code, § 2525; Pickens v. Oliver, 29 Ala. 528. I think the evidence set out in the bill of exceptions authorized the learned judge in the court below to take this view of the case, as presented to the jury. And his refusal to give the charge asked by the defendant was proper and free from error. There was also no error in sustaining the demur-rer to the first plea. It was, in no sense in which I feel satisfied to construe the law, a proper plea.

The objection to the declaration of the plaintiff, that the land rented belonged to her, was in no wise hurtful to the defendant. Then, he has no legal ground to complain. Upon the issues on trial before the jury, it may have been irrelevant, but the fact, supposed to have been sought to be established by it, could not have changed the result. A renter cannot dispute the title of his landlord, in an action for the rent.

The judgment of the court below is affirmed.