DeBardelaben v. Stoudenmire , 82 Ala. 574 ( 1886 )

SOMERVILLE, J.-

1. The bill avers the property in controversy, on which the alleged waste was committed, to have'been the statutory separate estate of the deceased wife, Mrs. DeBardelaben. It having been shown that she was a married woman, and was in possession, claiming ownership of the property, the presumption would be that it belonged to her under the laws of Alabama, as a part of her statutory separate estate. If it was an equitable separate estate, the onus was on the defendant to prove this fact, not on the plaintiff to disprove it.—Steed v. Knowles, 79 Ala. 446; Patterson v. Kicker, 72 Ala. 406.

2. It is contended that the land, from which the houses were removed, was made the wife’s equitable separate estate by reason of an ante-nuptial agreement between her and her husband, the appellant, by which he renounced his marital rights in the property, and agreed to let the wife retain the complete control and management of it. This agreement, however, was verbal, and was never reduced to waiting. Whatever effect such an agreement would have operated to produce, if it had related to personal property, it was void, under the influence of the Statute of Frauds, because the right of the husband, claimed to have been relinquished by him, wuis an interest in land, and not, therefore, a proper subject of verbal transfer. We entertain no doubt of the proposition, that such a renunciation, which can be upheld only on the theory of a verbal gift by the husband to the wife, is not effective when relating to land, either as an alienation, or as an agreement to aliénale, unless it be reduced to writing, and signed in proper form. — Code, 1876,_§§ 2121, 2145.

It follow's that the husband and wife had over the property in question, jointly or separately, only such power as is conferred on them by the statutes governing the wife’s statutory separate estate.

3. Property thus belonging to the wife, at the time of this transaction, vested in the husband as her trustee, who had the right to manage and control the same, without liability to account for the rents, income, and profits. It could only be “sold” by husband and wife, for the purpose of reinvestment, and conveyed by them jointly, by instrument in writing, attested by two witnesses, or duly acknowledged. Code, 1876, §§ 2706, 2707, et seq. The husband, as trustee, is held to the same good faith, and discreet management of the trust property, as other express trustees under like circumstances, except only as his rights and duties are modified by statute. He is liable to be removed from his trust, for a violation of his fiduciary duties, and the waste of the trust property, — even for misappropriating her income to his own personal uses, for which no other legal liability to any one rests on him.—Kraft v. Lehman, 79 Ala. 323; Lee v. Tannenbaum, 62 Ala. 501. A fortio > i would he be liable for the waste or destruction of the corpus of such property. There is nothing in the statute from which it can be inferred, that the, wife has any power to transfer her statutory separate estate to her husband, especially by, way of a mere gift. It is our opinion she can no more make a valid gift of such propertj' to him, than she and the husband combined can make such gift to a third person.—Smyley v. Reese, 53 Ala. 89. This, it is well settled, they can not do. The statute prohibits husband and wife from contracting with each other, for the sale of any property.— Code, 1876, § 2709.. A contract for a gift of the wife’s property is repugnant, to the policy of the statute, and is clearly prohibited by implication.

4. It can not, for this reason, be material, whether the wife consented to the removal of the houses from her own • land to that of her husband, or not. The .act of removal was one of lasting damage to the freehold, permanently diminishing the value of the wife’s estate. And being unauthorized by law, it was a tort, for which the appellant, as trustee, was liable to account, — a clear act of voluntary waste, for which every trustee must be held p > ima facie accountable to the cestui que trust. The presence and verbal assent of the wife can impart no validity to such an act, nor do they operate upon her as an equitable estoppel.—Williams v. Auerbach; 57 Ala. 90; Canty v. Sanderford, 37 Ala. 91.

b. The statute of limitations of six years was no bar to this action. The defendant was the trustee of an express and continuing trust; and such trusts being the exclusive subject of equity jurisdiction, a bar could be created only by the lapse of twenty years, in the absence of an open disavowal of the trust, accompanied by an adverse holding of the trust property, and a dissolution of the trusteeship. McCarthy v. McCarthy, 74 Ala. 547.

6. The decree was, probably, erroneous in charging the appellant with interest from the time of the commission of the waste up to the date of the wife’s death. But this was corrected by the remiMitur on the part of the complainant, by which this part of the liability was expressly released. Hinson v. Williamson, 74 Ala. 197.

7. The averment and proof both being that the complainant was sole devisee and owner of all the deceased wife’s property, including the claim here in controversy, and that there was no administrator of the estate, nor debt against it, the suit was properly brought in the name of the complainant, as the equitable owner of the demand for which the defendant is liable to account as trustee in a court of equity.—Wood v. Cosby, 76 Ala. 557; Vanderveer v. Alston, 16 Ala. 494.

The other contentions of appellant are not, in our judgment, well taken. The decree of the chancellor is free from error, and must be affirmed.