Gunn v. Hardy , 107 Ala. 609 ( 1894 )

COLEMAN, J.

In December 1893, the appellant ' Gunn purchased at sheriff’s sale the house and lot in ’ controversy, sold under execution against J. D. Hardy. The purchaser received a deed from the sheriff duly executed, conveying to him the interest of the said J. D. Hardy, and upon this title instituted the statutory action of ejectment against Hardy and Wild who were in possession, to recover the property. Pending the ejectment suit, Louisa Hardy, wife of J. D. Hardy and her husband filed the present bill in the chancery court and prayed that the ejectment suit be enjoined. The court granted a temporary injunction in accordance with the prayer of the bill. Several grounds of demurrer were interposed to the bill, and a motion to dissolve the injunction for want of equity in the bill, and upon the denials of the answer. The court overruled the demurrer, and refused to dissolve, and from this ruling the appellant prosecuted the present appeal. The equity of complainants’ bill and their right to relief rest upon the propositions, that in 1886, prior to the rendition of the decree upon which the execution issued by virtue of which the property was sold, James D. Hardy, the execution debtor, being then the owner of the property, and in possession of it as his homestead and claiming it as such, conveyed the same to his wife, Louisa Hardy, by deed of conveyance, duly executed ; that the property consisted of a house and lot in a town and did not exceed in value two thousand dollars, and that they have remained in possession of the property and claiming it as a homestead'ever since. The legal conclusion deduced by complainants from these facts is, that the deed of conveyance from the husband to the wife, conveyed to her only an equity, and not the legal title, and having only an equity she could not defend on her title in a court of law. If we concede this contention to be true, we fail to see how the husband has any standing in a court of equity as-a complainant. If the legal title remained in him, it was assertable in a court of law. But we are -of opinion the contention is unsound. At the time of the execution of the deed by James D. Hardy to his wife, under repeated decisions, the effect was to invest in her only an equity, the legal title remaining in the husband. The wife owned an equitable separate estate, as distinguished from a statutory separate estate-She was entitled to the rents, incomes and profits, and could charge such an estate by her contracts. The husband reserved to himself no beneficial interest. His was only a dry legal title, without any active duties to perform. The effect of the statute of Feb. 28th, 1887,,' codified as sections 2341 to 2351 inclusive of the Code of 1886, was to abrogate the legal title of the husband and. invest the wife with the equitable and legal estate, as between the husband and wife. The statute however could not operate so as to affect intervening rights of creditors or. others. This is the effect of our decisions construing the sections of the Code referred to. — Connolly v. Mahoney, 102 Ala. 568; Maxwell v. Grace, 85 Ala. 577; Ramaye v. Towles, Ib. 588; Rooney v. Michad, 84 Ala. 585 ; Bruce v. Bruce, 95 Ala. 563 ; Turner v. Bernheimer, 95 Ala. 241; Scarf v. Moore, 102 Ala. 468.

If the homestead at the time of the conveyance to the wife was exempt from the decree and-execution against the husband, its conveyance was not a fraud on the creditors.

It. follows from what has beeu said, that complainant had a perfect remedy in a court of law. We will not render a final decree here, but will reverse and remand the cause, with directions that if complainants’bill is not amended within thirty days so as to give it equity, and ’show a. right to enjoin the respondents action in ejectment, the injunction must be dissolved and the bill dismissed upon motion of the respondent made in accordance with the rules of practice.

Reversed and remanded.