Cabalan v. Monroe, Smaltz & Co. , 70 Ala. 271 ( 1881 )

SOMERYILLE, J.

In the absence of evidence to the contrary, the principles of the common law will be presumed to have prevailed in the State of South Carolina at the time of appellant’s marriage with her present husband, which occurred in August, 1859.—Brick. Dig. 349, § 9.

And the domicile of both parties being then in that State, the rights of the husband to property there acquired and owned by the wife are to bo ascertained and governed by such common-law principles.—Whart. Confl. Laws, § 297; Lichenberger v. Graham, 50 Ind. 288.

By the common law, marriage operated as a gift to the husband of all personal property, including money, owned by, and in possession of the wife at the time, and of all choses in action which might afterwards be reduced to possession by the husband during the coverture. The husband was, also, entitled to the wife’s personal earnings as they accrued.—McAnally v. O’Neal, 56 Ala. 299; Bell v. Bell, 36 Ala. 466. It follows that, upon marriage, the marital rights of the husband attached eo instanti, and the personal property and money acquired by Mrs. Cahalan before or during her coverture, and owned by her at or during this period, became absolutely his, to the same extent as if he had purchased it for value.

There is nothing, we think, in the facts .of this case, which so modifies these principles as to bring it within the influence of Castleman v. Jeffries, 60 Ala. 380. After the property became the husband’s, the mere act of bringing it into this State could not, without more, operate to change its status or ownership. Transportation alone could not affect the question of title.

If it be true, as insisted by appellant’s counsel, that Cahalan, the husband, did any act by which he clearly renounced his marital rights, the legal effect of such renunciation would, at most, operate only to create in such property a separate estate in favor of the wife, which would partake of the nature of a mere gift by him to her.—Machen’s Executor v. Machen, 38 Ala. 364; Puryear v. Puryear, 12 Ala. 13.

Conceding, therefore, all that is claimed by appellant’s counsel, so far as concerns the evidence in this cause, the estate owned by Mrs. Cahalan in the moneys acquired in South Carolina, and alleged to have been invested in the real property here in contention, would be her equitable separate estate, and would not come within the statutory or constitutional provisions creating married women’s separate estates.—Helmetag v. Frank, 61 Ala. 67; McMillan v. Peacock, 17 Ala. 127.

Such an estate, as uniformly settled, can be alienated or charged by the wife, as if she were a femme sole/ and she may mortgage it as security for her own, or her husband’s debts.

The legal title of the house and lot in controversy was in Michael Cahalan, the husband of appellant. The wife’s claim to the property is a mere equity. The mortgage of June 10, 1873, made by them to McLaughlin, was duly and properly executed so as to convey both the legal title of the one, and the alleged equity of the other.

Under the necessary operation of these principles, the decree of the chancellor must be affirmed.