Hurst v. Thompson , 68 Ala. 560 ( 1881 )

SOMERVILLE, J.

The only question raised by the record- is, whether an action of unlawful detainer can be properly brought in the name of the wife, where the premises sought to be recovered belong to her statutory separate estate. We are clearly of opinion .that it can. Section 2892 of the present Code provides that “ husband and wife must be joined, either as plaintiffs or defendants, when the wife has an interest in the subject matter of the suit, unless the suit relate to her separate estate, when she must sue, or be sued alone.” .It has been said by this court that “ the statutory proceeding ior an unlawful detainer is but a substitute for the common-law remedy by ejectment.”—Lomax v. Spear, 51 Ala. 532. It is true that the action is designed to redress-a wrong done to the actual existing possession, and to protect such possession against unlawful invasion by affording a speedy and summary restitution, and the merits of the title can not be investigated or brought into dispute.—Code, §§ 3697, 3704; Womack v. Powers, 50 Ala. 5; Clark v. Stringfellow, 4 Ala. 353; Dwine v. Brown, 35 Ala. 596; Russell v. Desplous, 29 Ala. 308. But the fact that the action is pos-sessory in its nature does not affect the question. The possession of the husband is that of a mere trustee, with limited statutory rights and responsibilities, and is in law merely the possession of the wife.—Robison v. Robison, 44 Ala. 227. The suit relates to her separate estate, within the meaning of the statute, just as fully as an action of ejectment would. Forbidding the title to be controverted makes it none the less so, and the recovery of rents is a mere incident of the action, and not the foundation of it as in a separate action for mesne profits on rent it would be.—Pickens v. Oliver, 29 Ala. 528; Code, §§ 2892, 3709.

Affirmed.