Wife v. Dargin , 68 Ala. 370 ( 1880 )

BRICKELL, C. J.

The question involved in these cases is, whether a conveyance by a married woman of lands, her statutory separate estate, executed by her in the presence of two subscribing witnesses, and acknowledged before, and certified by a justice of the peace, signed by the husband, but in which he is not nominated’ as a grantor, and which contains no words of conveyance passing or intending to pass his estate or interest in the lands, can, in a court of equity, after the purchase-money has been paid, and possession taken and continued without interruption for a period of five years, be enforced as a contract to convey. The incapacity of the wife to contract was, it may be said, a canon of the common law, resulting not only from the fact that marriage deprived her of the administration of property, but also because her legal existence was suspended, or in the old phrase, merged in that of the husband. If she was seized of an estate of inheritance in lands, on the marriage the husband became seized thereof, entitled to the rents and profits during their joint lives, and by possibility during his own life, if he was the survivor, leaving in the wife an estate in reversion only. If she had an estate of freehold, not of inheritance, the husband became seized thereof, entitled to the rents and profits. Her chattels, real or personal, which the husband reduced to possession, were subject to bis disposition without her concurrence, and she was incapable of controlling or restraining it. The husband without her concurrence could alienate the estate or interest acquired by marriage in her lands.

The only mode in which the wife could alienate her reversion inlands — tbe estate remaining in her — was by joining with her husband in levying a fine and suffering a common recovery. This was a solemn proceeding in a court of record, and it was supposed that, before permitting it, the court would, ascertain if the wife was acting freely and voluntarily, and would protect her from the compulsion or influence of the husband, and from injudiciousness or imprudence. This mode of alienation, in point of fact, has never existed in this •State, the statutes having enabled the wife to pass her estate or interest in lands, by joining her husband in the execution of a deed attested by witnesses, or simply acknowledged before a competent officer, at some times with, and at others without, private examination.—Doe v. Wilkinson, 21 Ala. 296; George v. Goldsby, 23 Ala. 326; McBryde v. Wilkinson, 29 Ala. 662; Waddell v. Weaver, 42 Ala. 293; Ellett v. Wade, 47 Ala. 456.

The statute now 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, and is not subject to the payment of the debts of the husband.” Such property vests in the husband as trustee, and he has the right to mauage and control it, without accounting for its rents, income aud profits; but these are freed from liability to his debts. On the death of the wife, intestate, the husband is entitled to one half of her personalty absolutely, and to the use of her real estate during life. The mode of alienating the property of the wife, thus converted into a statutory separate estate, is prescribed : “The property of the wife, or any part thereof, may be sold by the husband and wife, and conveyed by them, jointly, by instrument of writing, attested by two witnesses.” And it is declared, that “ conveyances of a wife’s property, made in writing by husband and wife jointly, and acknowledged before some officer authorized to take acknowledgments of conveyances, are as valid and adequate to pass the wife’s estate, as if the same were attested by two witnesses.”—Art. 3, Chap. 1, Title 5, Part 2, Code of 1876, pp. 645-48.

The statutes have been construed as operating only to deprive the husband of the rights and interests with which the common law clothed him in the estate of the wife, real or personal, and enlarging her capacity to bold it, independent of, and freed from his marital rights as defined by the common law.—Short v. Battle, 52 Ala. 456; Marks v. Cowles, 53 Ala. 499. The legal title to the corpus of the estate resides in the wife, and in the husband resides only the right to manage and control it, taking the rents and profits as trustee, free from liability to account for them. The wife is not sui juris; the disabilities of coverture imposed by tbe common law, remain, save so far as they are modified. In no respect is her capacity to contract enlarged or modified, except in relation to the alienation and conveyance of the estate. • In that respect, the statute is enabling, and without conforming to its requisitions, the wife can not alienate .or convey her estate. Gibson v. Marquis, 29 Ala. 668; Canty v. Sanderford, 37 Ala. 91; Alexander v. Saulsbury, 37 Ala. 375; Warfield v. Ravisies, 38 Ala. 518.

The statute is manifestly an enlargement of the common law powers of the wife. As to her lands it authorizes a less formal, solemn mode of conveyance, than was known to, or recognized by the common law. In lieu of a fine and recovery, a judicial proceeding in a court of record, a conveyance, an instrument in ivritinq, in the execution of which she and her husband join, attested by two witnesses, or acknowledged before, and certified by a competent officer, is substituted. Any other species of contract, whatever may be its form, is simply void, not voidable as are the contracts of infants. It is conceded such is the consequence at common law, but as husband and wife have the power to sell, as well as the power to convey, it is insisted a court of equity will treat the deed of the wife founded on a valuable consideration, shown to have been executed with the concurrence of the husband, as a contract to convey, and will decree specific performance of it. How is the concurrence of the husband to be shown ? The statute prescribes the mode, and that mode is exclusive. No other can be substituted or recognized by the courts. An instrument in writing iu which they appear as the vendors, attested or acknowledged as the statute requires, could possibly operate as a contract' to convey, of which courts of equity would decree specific performance, if it was fair and just, and founded on an adequate, valuable consideration. If specific performance was decreed of any other species of contract, a court of equity would impart validity to a contract pronounced by the common law void, absolutely void as to the wife. The deed can not properly be styled the contract of husband and wife. It is no more nor less than the void deed of the wife, to which the husband is not a party, and to which his concurrence was not expressed in the only mode in which the law authorizes its expression. The principle is too well settled now to be controverted, that the mere agreement of the wife for the sale of her real estate, though made with the assent of the husband, is void at common law, and against her a court of equity will not enforce it.—Wooden v. Morris, 2 Green Ch. 65; Martin v. Dwelly, 6 Wend. 9; Butler v. Buckingham, 5 Day (Conn.), 492; Bressler v. Kent, 61 Ill. 426; Miller v. Mine, 13 Ohio St. 565. The bills are not now framed with a view to compel an election to avoid or affirm the partition, or to compel a restitution of the purchase-money paid by Dargin. A specific execution of the deeds as contracts to convey, is the entire scope of the bills as now framed and it is unnecessary to consider what may be the equities of the parties, if the causes were presented in another aspect.

The decrees must be reversed, and the causes remanded.