Wheeler v. Walker , 64 Ala. 560 ( 1879 )

BRICKELL, C. J.

The deeds from Swoope are made directly to Mrs. Walker, were executed here, and convey lands situate in this State. The lex rei sitae, controls conveyances of real estate, determining their validity, operation, and construction. The estate granted, not being otherwise limited by the terms of the conveyances, by force of the statute, which declares “ all property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage, in any manner, is the separate estate of the wife,” became and was a statutory separate estate, with all its incidents and liabilities, as distinguished from the equitable separate estate of a married woman, as known and recognized by the law prevailing when the statute was enacted, and which may now be created when such is the intention of the parties, and there is a clear unambiguous expression of the intention. — Short v. Battle, 52 Ala. 456.

It may be conceded, for the purposes of this case (and any examination or consideration of the question is therefore unnecessary), that according to the laws of Scotland, the domicile of the parties at and subsequent to the marriage, and the place of the contract, the ante-nuptial settlement or contract, into which Walker and his wife entered, excluded the husband from all right and interest in the property of the wife, and from all her subsequent acquisitions, the fruits of the property on which the settlement operated. It may be further conceded, that the purchase-money of the lands, being either of the corpus, or acquisitions from the corpus, of the property on which the settlement operates, a trust would arise or result to Mrs. Walker, to compel the legal estate in the lands to be settled in the same manner, and according to the terms of the ante-nuptial settlement; and thereby her estate would be equitable, not statutory, and incapable of subjection by legal remedies to liability for her own contracts, and to the legal liability of the statutory estate for necessaries for her family, whether they were purchased by her or her husband. We do not consider this question, and abstain from all expression of opinion in reference to it. A court of law is incapable of recognizing or enforcing such trusts, or of giving to the conveyances to Mrs. Walker any other operation or effect than such as their terms import. These create in her a statutory estate, liable to be subjected to contracts for articles of comfort and support of the household, and for tuition of the children of the wife, suitable to the degree and condition in life of the family, which can be enforced by an action at law against the husband and wife.— Code of 1876, § 2711. Such liability is an incident of the estate created by the conveyances of Swoope, of which the estate cannot, in a court of law, be stripped by evidence of a trust resting in parol or springing out of the consideration on which they are founded. Such trusts it is the office of a court of equity alone to recognize and enforce. — Morris v. Haney, 4 Ala. 300; Puryear v. Puryear, 16 Ala. 486; Bolling v. Mock, 35 Ala. 727.

In admitting the ante-nuptial contract as evidence ; in the admission of evidence that the purchase-money of the lands paid Swoope was derived from a sale of the property on which the contract operated, and in the instructions given the jury, the Circuit Court erred. Let the judgment be reversed, and the cause remanded.