Pepper & Co. v. Lee , 53 Ala. 33 ( 1875 )

BRICKELL, C. J.

In Short v. Battle, 52 Ala. 456, it was held a conveyance to a married woman, for her sole and separate use, did not create a statutory but an equitable separate estate. Such is the character of the conveyance, under which the appellee deduced title in the court below. To the creation of the wife’s equitable estate, the intervention of a trustee to hold the legal title is not necessary; a court of equity would appoint a trustee, or decree the husband to stand as trustee. Fellows v. Tann, 9 Ala. 999; Gerald v. McKenzie, 27 Ala. 166; Friend v. Oliver, ib. 532; Pinkston v. McLemore, 31 Ala. 308. The conveyance not nominating a trustee, the legal title of necessity resided in the husband, and he could interpose a claim to try the right when the property was levied on under legal process against another. Gerald v. McKenzie, supra, Pickens v. Oliver, 29, Ala. 528. For the purpose of showing the conveyance did not create a statutory separate estate, and that therefore, the appellee as husband, could not interpose the claim, the appellants proposed introducing the conveyance in evidence, but on objection of the appellee, the court refused to permit it to be introduced. The conveyance seems to have been indispensable to support the appellee’s claim, and would more properly have been introduced by him. Notwithstanding that it would have shown the fact appellant proposed showing by it, the consequence of the fact was the opposite of what they supposed. Not showing a statutory separate estate, and no trustee being named' in the deed, the husband had the legal title, and he alone could interpose the claim. If the court erred in sustaining the objection, it is, as to appellants, error Avithout injury.

2. The charge of the court is not erroneous. It must be construed in connection Avith the eAÚdence before the jury. Thus construed, though it may, as a legal proposition, be too broadly stated, it is correct. The issue before the jury was, whether the property levied on, was the property of the defendants, and liable to its satisfaction. R. C. §3017. There was no evidence of title in any one else, than the defendants in attachment, or in the claimant as trustee of his wife. The claimant had not offered to shoAV title in any other person than himself to defeat the levy of the attachment. The only question before the jury was, had the defendant in attachment, or the claimant the title ? On this evidence, the court must of necessity have charged, that the jury could not find the property subject to the levy, unless it was the property of the defendants in attachment. The judgment is affirmed.