Jordan & Sons v. Smith , 83 Ala. 299 ( 1887 )

SOMEBTVTLLE, J.

1. The system of laws creating and regulating married women’s statutory separate estates, as existing under the Code of 1876, was entirely abrogated by the act approved February 28th, 1887, now comprised in sections 2341 to 2350 of the Code of 1886, which substitutes an entirely new system, based on entirely different principles. With this repeal of the old system, section 2711 of the Code of 1876, which declared the liability of such separate estate for certain articles of comfort and support of the household, and provided for the mode of its enforcement, was also repealed. This repeal, however, could have no effect on the right of the plaintiffs in this action, or their remedy for the enforcement of it. It can not be presumed that the General Assembly intended, in making this repeal, to violate that 'clause in the constitution which provides, that “there can be no law of this State impairing the obligation of contracts, by destroying or impairing the remedy for their enforcement P — Const., 1875, Art. IY, §56; Edwards v. Williamson, 70 Ala. 145. The effect of this clause alone, especially when construed in connection with section 10 of the Code of 1886, as well as the same section in the Code of 1876, is to continue in force the provisions of section 2711 and 2712 of the latter Code, for the purposes of this suit, which is one to enforce against the wife’s property a contract for articles of comfort and support, suitable to the degree and condition in life of the family, and was commenced January 24, 1887. — State v. McBryde, 76 Ala. 52; Cooley’s Cons. Lim. (5th Ed.), 352; (*289.)

2. The only question seriously controverted is, whether the equitable title, created in the wife by the husband’s declaration of trust, made in the instrument executed by him on January 17th, 1872, is such an estate as can be subjected to sale by a proceeding of this nature. The property in controversy was purchased with the proceeds of the wife’s statutory separate estate, and the legal title taken in the husband’s name. Under the authority of the rule declared in Loeb v. McCullough, 78 Ala. 533, it still remained her statutory separate estate, at her election, and its nature in this particular could not be changed by the form of any subsequent conveyance of the property to her. Even a direct conveyance of this property to the wife would not have transmuted it from a statutory to an equitable separate estate, although containing words which would ordinarily create the latter kind of an estate. — Parker v. Marks, 82 Ala. 548. The instrument which declares the trust for the benefit of the wife, however, also expressly declares, that the estate vested in her shall be one under the married woman’s laws of Alabama then in force, which imports, of course, ex vi termini, a statutory separate estate.

3. Is the statute broad enough in terms to authorize an order of sale by judgment of the Circuit Court, subjecting an eqvidable iitle held by the wife, to the payment of contracts which fall within the class described by section 2711 (Code, 1876) ? That the tilléis equitable, does not prevent tbe separate estate from being statutory; for it has often been decided that the wife may have a statu,lory separate (‘state in an equity, or equitable titile, as well as in a purely legal title.- — Sharp v. Sharp, 76 Ala. 313; Proud v. Hoqe, 57 Ala. 28; Parker v. Marks, 82 Ala. 548. The statute declared, that “all the property of the wife,” held by her in any manner, should be secured to her as her separate statutory estate. — Code, 1876, §2705. And this estate, as thus created, is declared by sections 2711 — 2712 to be one which may be condemned for the contractual liabilities described in thesame sections. — Code, 1876, §§ 2711-2712. Theprovision made is for the condemnation of her separate statutory estate, in which, we repeat, is embraced all property owned by her, which is not her common-law equitable estate, whether the title be legal or equitable. An analogous case is found in the statutes which provide for the sale of “the real estate” of deceased persons by the Probate Court in this State. This has been held to embrace all real estate, whether the title be legal or equitable; the purchaser acquiring, of course, no better title than that of which the decedent was seized at the time of his death. — Evans v. Matthews, 8 Ala. 99; Duval v. P. & M. Bank, 10 Ala. 636. Unless this view be correct, the plaintiff would be entirely without remedy, as a court of equity would have no jurisdiction to enforce claims of this nature against the statutory separate estates of marriéd women. — Janney v. Buell, 55 Ala. 408. This, in cases of doubt, is of itself persuasive to show that the legislature intended to embrace both equitable and legal titles in the comprehensive phrase, “ all property of the wife,” as used in the statute.

Our conclusion is, that equitable titles ' may be subjected to sale under these provisions of the Code, as well as legal titles, if the estate is statutory. For this reason, the- court erred in excluding from evidence the deed offered by plaintiff to prove the wife’s title to the property in controversy.

4. The two common counts, claiming on account stated and by open account, could be properly joined with the count for articles of comfort and support, for which it was sought to subject the wife’s property. This is settled in Eskridge v. Ditmars, 51 Ala. 245, where it was observed, that “the judgment will be framed, if necessary, to meet the necessities of the case.” This case, in effect, overrules May v. Smith, 48 Ala. 483, where the contrary view seems to have been taken. The demurrer for misjoinder of counts was improperly sustained. There would seem, on principle, to be no more objection to the joinder of counts of this nature in a complaint, . than of the common counts with a special count seeking to enforce the statutory lien of a mechanic, or material-man; which has been held permissible, the plaintiff in such case being entitled to a personal judgment, although he fails to establish the lien. Bedsole v. Peters, 79 Ala. 133. If the wife desired to raise any question as to her personal liability on the first two counts, she could have done so only by interposing her plea of coverture (Hall v. Canute, 22 Ala. 650), or, in case the fact of coverture had appeared on the face of the complaint, the objection would have been available on demurrer. — Gibson v. Marquis, 29 Ala, 668.

The judgment is reversed, and the cause remanded.'