Long v. Efurd , 86 Ala. 267 ( 1888 )

STONE, C. J.

Under our statute (Code, 1876, § 2706), as it existed before February 28, 1887, the husband, as trustee of his wife’s statutory separate estate, had the right to manage and control the same, and was not required to account with her, her heirs, or legal representatives, for the rents, income and profits thereof, but such rents, income and profits were not subject to the payment of his debts. This constituted a very peculiar estate. It wanted one indispensable element of the ownership of the husband — liability for his debts. With the exception of the exemptions the law can and does confer, the absolute ownership of property is incompatible with its exemption from execution. — Jones v. Reese, 65 Ala. 134. It can not be said, in any accurate employment of language, that, under our former statutes, the husband became the absolute owner of the rents, income and profits of his wife’s estate. He held them in trust, but the wife was without power to enforce that trust. — Boaz v. Boaz, 36 Ala. 334; Patterson v. Flanagan, 37 Ala. 513.

The object of the present bill is to subject a house and lot in Clayton to the payment of a judgment complainants’ intestate recovered against Efurd & Son — husband and son of Mrs. Efurd. The debt on which the judgment was recovered, had been incurred before the lot referred to was purchased in the name of Mrs. Efurd, and the title taken in her name; T. R. Efurd, her son, negotiating the purchase, and superintending the improvements in her name. The question of contention is, whether effects, the property of Efurd & Son, or either of them, or effects liable to the debts of either, entered into the purchase or improvement of the lot.

It is uncontroverted, that Efurd & Son failed in business in 1880, or in 1881, and that they have been insolvent ever since; and that Mrs. Efurd owned two plantations, or places in the country, one called the “home place,” on which she resided with her husband, and the other called the “lower place.” These she held as her statutory separate estate. We also feel justified in holding, that the lot and its improvements were paid for with the proceeds of crops that were grown on said places. True, T. R. Efurd, the son, sometimes employed some of his own means in payment, or part payment, for materials used in the improvements; but his testimony shows that he had previously received moneys of his mother with which to mate these purchases, or that she subsequently repaid him. So, we repeat, the testimony proves that the lot and its improvements were paid for with the proceeds of crops grown on lands that were her statutory separate estate.

Efurd, the husband, had the right to manage and control her separate estate, and to use and consume the rents, income and profits, without liability to account for the same; and if he invested the same in property for himselc, taking the title in his own name, that property would be subject to his debts, to the same extent as any other property held and acquired by him. But such use, consumption, or investment of the income and profits, would neither create a debt against him, nor furnish a consideration to uphold a conveyance from him to her, in payment of such supposed liability. — Early v. Owens, 68 Ala. 171; Pickett v. Pipkin, 64 Ala. 520; Gahalan v. Monroe, 70 Ala. 271; Vincent v. State, 74 Ala. 274.

The question, however, becomes a very different one, when the husband, without consuming or investing the rents, income and profits, permits the wife, or even any one else, to use or invest the same, not in his name, but in the name of another. In such case, the money or effects never having become subject to his debts, his creditors can not complain of the disposition. A voluntary conveyance, in such conditions, is no fraud of which any one can complain. — Vincent v. State, 74 Ala. 274; Fellows v. Lewis, 65 Ala. 343; 3 Brick. Dig. 491, § 20.

It is contended, however, that the purchase-money of the lot, or some part of it, was paid from the personal earnings of the wife and children; that these earnings were the property of the husband, and that complainants are entitled to relief to the extent such earnings entered into the purchase. Glaze v. Blake, 56 Ala. 379; Gordon v. Tweedy, 71 Ala. 202; 3 Brick. Dig. 552, § 129. We would find it exceedingly difficult and embarrassing, if this claim were made good, to carve partial relief out of the statutory separate estate of a married woman, under the law as it existed when this claim originated. — Carter v. Worthington, 82 Ala. 334; Hoot v. Sorrell, 11 Ala. 386. We need not decide this question.

We are not able to affirm, on the uncertain proof found in this record, that the fifty dollars, purchase-money of the unimproved lot, or any part of it, was the identical money earned by the labor of Mrs. Efurd and her children.

We find no error in the record.

Affirmed.