Hamaker v. Hamaker , 85 Ala. 231 ( 1887 )

CLOPTON, J.

The bill avers that all the money with which complainant paid for the land in controversy, was her statutory separate estate. Complainant’s own testimony shows that the land was paid for with the proceeds of a note given, and of the sale of land conveyed, directly to her by her husband. A conveyance by the husband, directly to the wife, creates an equitable separate estate, unless conveyed in consideration of money, or to stand in place of property, which was the statutory separate estate of the wife. McMillan v. Peacock, 57 Ala. 127; Loeb v. McCullough, 78 Ala. 533. There were put in evidence two deeds to the land, with the proceeds of which the land in controversy was paid for in part — one made in February, 1881, reciting as consideration an indebtedness of the husband on account of money, the statutory separate estate of complainant; and the other, made in May, 1881, in performance and in pursuance of an ante-nuptial agreement. The proof shows that complainant had, at the time of marriage, no separate estate, statutory or other, and had acquired none since, except from her husband. If it were conceded that the first deed vested in her a statutory separate estate, then the land was paid for with money which was part her statutory, and part her equitable separate estate; and if it created an equitable separate estate, then all the money which was paid for the land was ber equitable estate. In either event, there is a fatal variance between the allegations of the bill and the proof. The rights and powers of the wife are different under the two estates. — Milhous v. Weeden, 57 Ala. 502; Webb v. Robbins, 77 Ala. 176.

Beversed and remanded.