Vansandt v. Weir , 109 Ala. 104 ( 1895 )

HEAD, J.

Under general principles of equity jurisprudence, uncontrolled by statute, a married woman, in respect of her separate estate, was regarded as a feme sole. She could dispose of, charge or encumber it in like manner as if she rested under no marital disability. There being no other trustee, her husband was regarded as the dry holder of the legal title, while she held the entire beneficial interest, subject to her own unlimited control and disposition. When not acting under the actual 'and implied coercion of the husband, she could bind the estate by acts in pais, amounting to an equitable estoppel. — Drake v. Glover, 30 Ala. 382. And she could, by. such acts, dedicate her lands to public use.— 5 Am. & Eng. Encyc. of Law, 399.

A prime question, now presented, is, whether she can, by acts and conduct in pais, dedicate to public use land which is made a separate estate in her by the statutes of Alabama. As is well known, the land in question of Mrs. Weir (which must be presumed, in the absence of contrary averment, was acquired not under a conveyance excluding the marital rights of the husband) would not, in the absence of legislation, have constituted property belonging to her. If it belonged to her at the time of the marriage, or was afterwards acquired, it would, at common law, eo instanti the marriage, or its aequisisition, have vested in the husband, for the joint lives of himself and wife; and, he surviving her, for his life as tenant by the curtesy, the other conditions of curtesy being present. So that we see, at once, that Mrs. Weir’s ownership of such land is purely the creation of the' statute ; and, of consequence, she takes just such an es-state as the grace of the statute confers. If the statute, which creates and confers the estate, imposes limitations. or restrictions upon her powers over it, she takes the estate cum onere such limitations or restrictions. Recurring to our legislation on the subject, we see that all equitable separate estates, such, as we have said, the wife could have disposed of, or charged, in equity, as a feme sole, have been abolished, with the single exception of estates where the legal title is vested in an active trustee for the use of the wife '■ and all such abolished equitable estates, and all other estates coming to the wife, which, as we have said, would have vested in the husband, at common law, are created and converted by the statute into legal separate estates of the wife, freed from all title, interest or control on the part of the husband. We see, further, that by the same legislation certain limitations and restrictions are attached to, of imposed upon the estates so created; prominent among which is the provision that her real property shall not be disposed of (save in specified contingencies) except by the joint deed of the husband and wife. This provision substantially obtained in our former married woman’s law, so long in force., and frequently became the-subject of judicial con-, sideration in this court; and, in our adjudications, it was well settled that a married woman could not dispose of her statutory separate estate by way of equitable estoppel ; that she was confined to the mode of disposition prescribed by the statute, which was by the joint deed, in writing, of herself and husband. — Canty v. Sanderford, 37 Ala. 91; Wilder v. Wilder, 89 Ala. 414 (7 So. Rep. 767); Steiner v. Tranum, 98 Ala. 315, and cases therein cited; Curry v. American Freehold Land Mortgage Co., 18 So. Rep. 328, explaining Wilder v. Wilder, supra. She may be divested of title by the adverse possession of her lands by another, under the statute of limitations.— Code, § 2624. What effect might by produced upon her estate by actual fraud committed by the wife is not now for our consideration. Nor have we any reference to judicial sales of her estate, in the enforcement of con-, tracts which she may lawfully make; nor to the subjection of her lands under the right of eminent domain.

Dedications of land to public uses, -not effected by statute or grant, and where private rights have been acquired, as alleged in the present case, operate upon the principle of estoppel in pais, or, as it is termed, equitable estoppel. It arises from the conduct of the owner,.including his spoken or written words, his positive acts, and his silence or negative omission to act when he should, naturally inducing many persons to purchase property, expend money, or otherwise alter their conditions, to’their detriment. — 2 Pom. Eq., § 802; 5 Am. & Eng. Encyc. of Law, 410, notes; People v. Reed, 15 Am. St. Rep. 22.

The conclusion, then, is irresistible, that a married woman cannot divest herself of her statutory real estate, by dedicating it- to public use, except by the joint deed of herself and husband, executed as the statute prescribes, or, perhaps, by a statutory dedication, under the act of 1887. — Acts 1886-87, p. 93. Fettered by law -with the disabilities we have mentioned, the public and individuals dealing with her, in reference to her lands, do so with knowledge of such disabilities, and will not be heard to invoke against her an estoppel which the statute, in effect, declares she cannot create.

The Chancellor committed no error in dissolving the injunction and dismissing the bill for want of equity.

Affirmed.