Williamson v. Baker , 78 Ala. 590 ( 1885 )

SOMERVILLE, J.

In this case, the husband recovered the rents of the wife’s statutory separate estate, he suing as sole plaintiff in the action. It is insisted for appellant, "that the wife should have been the sole party plaintiff, and that she alone was entitled to sue, because the land in question was leased by her prior to her marriage, and that this fact constituted such rents a part of the corpus of her separate estate, although they accrued or became due after marriage. The case of Boggs v. Price, 64 Ala. 514, is relied on to support this view, and seems to sustain it. We do not concur in this view, being of opinion that the distinction sought to be made in the case last cited is unsound.

The rule is clearly and definitely settled to be, that while the income, rents, and profits of the ' wife’s statutory separate estate, may be recovered in her name as sole plaintiff, when they are a mere incident to the recovery of the corpus of such estate; yet, when they are the subject of a separate suit, and accrue after marriage, the husband is entitled to sue for them in his name, because he takes them as trustee of the wife under the statute, and is not liable to account fot them to any one. — Pickens v. Oliver, 29 Ala. 528; Lee v. Tannenbaum, 62 Ala. 501; Code, 1876, §§ 2706, 2892.

The question is reduced to the inquiry, whether this statutory right of the husband can be abrogated by the mere making of a lease by the wife prior to marriage. If so, she may, just on the threshold of entering into such relationship, lease her lands for twenty years, and claim the control of the rents, to the dispossession of the husband’s claim. We perceive no reason why the making of a lease can change or destroy the husband’s rights, where the rents become due after marriage. They do not for this reason cease to be rents, income, and profits. The only difference between a lease made before and after marriage, consists in the fact that the wife alone makes the contract in the former case, and the husband and wife jointly in'the latter. A sale of the land after the lease would carry to the vendee all rents not due, but would not transfei such as were already due.— Gayle v. Randall, 71 Ala. 469. If they become due after marriage, we think the husband is entitled to sue for and recover them in his own name as sole party plaintiff. The Circuit Court so ruled, and the judgment must be affirmed.