Young v. Pollak & Co. , 85 Ala. 439 ( 1888 )

STONE, C. J.

Before the enactment of any of our statutes securing to married women their separate estates, it was settled by several decisions of this court, that if a husband abandon his wife, and abjure or remove from the State (or reside out of the State), and she engage in trade in her own name, her contracts are binding on her, and she may sue or be sued as a feme sole. — Arthur v. Broadnax, 3 Ala. 557; James v. Stewart, 9 Ala. 855; Mead v. Hughes, 15 Ala. 141; Roland v. Logan, 18 Ala. 309. We regard this principle as equally a sword and a shield for wives thus circumstanced, and have no wish to disturb or depart from it.

Under the act “to define the rights and liabilities of husband and wife,” approved February 28, 1887 — Sess. Acts, 80 — the wife “may enter into and pursue any lawful trade or business, as if she were sole, . . if [her husband] has abandoned his wife, or is a non-resident of the State.” — Code of 1886, § 2350. The difference between the two systems is, that under the former rule, both abandonment and abjuration (or non-residence) were necessary to clothe the wife with power to contract and to sue, while under the statute either confers the power and right. Contracts made on and after February 28, 1887, are governed by the statute.— Wood v. Fort, 42 Ala. 641. Those entered into before that time, are governed by the rule first above stated.

In the present cases, the questions of abandonment and abjuration, or non-residence, were, each of them, contested. Each of these was a question for the jury, under proper instructions. And the instructions must be construed and interpreted with reference to the testimony before the jury. 3 Brick. Dig. 115, §§ 131 et seq. There is nothing in these records tending to show that Young stole the horse in Georgia, before he, “the said W. L. Young, and defendant, viz., sometime in 1875, moved to Chambers county, Alabama.” The agreed statement of facts does not tend to prove that the theft preceded the removal.

The fourth charge given at the request of plaintiffs in each of these cases, is in the following language: “If W. L. Young, husband of defendant, removed into the State of Alabama as a place of refuge, or to escape arrest in the State of Georgia, and that was his sole purpose, this would not give him a domicil in Alabama.” Change of domicil consists of an act done, with an intent. The act is an actual change of residence. The intent, to effect the change, must be to acquire a new domicil, either permanent in purpose, or of indefinite duration. A temporary habitation, without intent to make it a permanent home, or one of indefinite duration, is not a change of domicil. — Merrill v. Morrissett, 76 Ala. 433; 5 Amer. & Eng. Encyc. of Law, 863.

The charge copied hinges the question of Young’s change 'of domicil on the purpose with which he moved from Georgia to Alabama. Men change their domicils with very varying purposes or motives. The desire to live in a healthier region, to have better social or educational advantages, to enjoy better church privileges, to be near one’s relatives, to live in a new and growing country, and sometimes to be relieved of disagreeable surroundings — these and many more may be classed among the purposes — sole purposes, if you please — with which men change their residence. Yet, if the change be in fact made with the intent to acquire a new residence, either permanent, or of indefinite duration, this is a change of domicil. The intent that the new habitation shall, or shall not be permanent, or of indefinite duration, and not the purpose in making the change, is the pivot on which the inquiry turns. The City Court erred in giving this charge.

The second charge at the instance of plaintiffs in each of these cases needs modification. If Young, under the rules declared above, became a resident of Alabama, then his return to Georgia under arrest, or involuntary confinement there, are, of themselves, no evidence of a change of domicil.

In the case of Poliak & Co., the second and third charges asked by defendant were calculated to mislead, and were rightly refused on that account. All the charges asked by defendant in each of the cases were rightly refused.

Counsel for plaintiffs, in each of the cases, was .permitted to make statements of facts beyond legitimate bounds. There was no testimoney tending to show that Young was dodging the officers of the law after his re-arrest in the Spring of 1881. These statements of counsel should have been arrested.

The rulings on demurrer are not assigned as error. If they were assigned, the demurrers were properly overruled, under the principles declared above.

Reversed and remanded.