McAnally v. Alabama Insane Hospital , 109 Ala. 109 ( 1895 )

HARALSON, J.

At common law, marriage vested in the husband the title of the wife to all personal chattels, of which she had actual or legal possession; and to her real estate he gained a title only to the rents and profits during coverture, but the estate itself remained entire to the wife, after the death of her husband, or to her heirs, if she died before him, unless by the birth of a child, he became tenant for life by the courtesy. — 2 Brick. Dig. 71, 72, § § 36, 51. At common law the wife was generally incapable of entering into any valid contract, to bind either her person or property, and could not be sued at law in an action ex contractu; and, except as modified by statute, this disability continues to exist. — 2 Story Eq. Jur. § 1397; Reeve’s Dom. Relations, 138; 14 Am. & Eng. Ency. of law, 604; Davis v. Carroll, 71 Md. 570; Bank v Partee, 99 U. S. 332; 3 Brick. Dig. 545, § § 52, 53. This rule of the common law has been modified in this State, and “The wife has full legal capacity to contract in writing, as if she were sole, with the assent or concurrence of her husband expressed in writing.” — Code, § 2346-, This statute, as to contracts therein referred to, does not enlarge the capacity of a married woman to contract in all of the usual modes ; but, as we have heretofore held, it is enabling and restrictive, — enabling, so as to authorize her to contract in any manner that she could do if a feme sole, with the written consent and concurrence of her husband ; and restrictive, in that it denies this power, except in the specific mode prescribed in the statute. For the full exercise of the power to contract, two things are necessary, — a written contract by the wife, and the written assent or concurrence of the husband for her to make or enter into the contract. — Scott v. Cotten, 91 Ala. 628.

One of the exceptions to the common law rule to which we have referred, disabling the wife to contract, was, that if the husband abandoned her, and departed into another country, without the intention of returning, the law conferred on her the capacity of contracting and suing as though she were sole. — Arthur v. Broadnax, 3 Ala. 357; James v. Stewart, 9 Ala. 855; Mead v. Hughes, 15 Ala. 148; Roland v. Logan, 18 Ala. 307. Or, when the husband was civilly dead, outlawed, banished, imprisoned for life, &c. — the wife had the powers of a feme sole. — 14 Am. & Eng. Enc. of Law, 591. The reason for engrafting the exception referred to on the disabilities of the wife to contract at common law was, that without it, oftentimes married women, whose husbands had renounced their wives, families and country, “could obtain no credit on account of their husbands, for no process could reach them ; and they could not recover for a trespass on their persons or their property, or for the labor of their hands. They would be left wretched dependents upon charity, or 'driven to the commission of crimes to obtain a precarious support.” — Gregory v. Paul, 15 Mass. 31; Mead v. Hughes, supra. The same reasons, it is contended for the appellee, apply to engraft an exception in favor of married women, in cases of the insanity of their husbands, and for the further reason, that the husband being insane, no marital right can be affected, and every presumption of possible coercion is removed out of the way, — citing Reeve’s Domestic Relations, 138. But, the reasons in the two cases are not the same. It has been held as the common law doctrine, “that the husband must maintain the wife, whenever there is a separation without her fault. Insanity in either is not a fault; therefore, whether he or she is insane, or though both are, he must still provide for her. If she is in the insane asylum, he must support her there. He may be sued for necessaries there supplied to her. Or, should he be the one in the asylum, the wife, though sane, may charge him with necessaries while he is there confined.” — 1 Bishop on Marriage & Divorce, § 565.

One is not civilly dead who is insane, nor, — if not removed beyond his State, — can he be said to be where process may not be served on him. He is responsible for contracts made before he became insane, and may be sued on them. And that one insane may be the better taken care of, and- not become a charge on his family, the statutes of this State provide for the appointment of a guardian of his person and property. — Code, § 2390. So far as he is concerned, if a married man, the wife has no occasion to enter into a contraer for his support with an asylum. The same reasons, then, for the rule invoked as to the capacity of the wife to contract, whose husband is civilly dead, or who has abandoned his wife and family, and gone to reside in another state, with no intention of returning, do not apply to cases of the mere insanity of the husband. In the American Sl English Encyclopedia of Law, it is said on this subject, that “as a general rule, the insanity, infancy, or other incapacity of a husband does not affect the personal status of the wife,” and the compilers, while stating that there seemed to be no cases on the point, added, that “the proposition is an easy inference from the well known principles on this subject.” — 14 Vol. 592.

Said section 2346 of the Code, touching the wife’s power in this State to contract with the written consent of her husband, is in derogation of the common law, and it would seem that none of the exceptions to which we have been referring, on the power of the wife to contract at common law, have anything to do with the statutes of this State on the subject. These statutes seem to create their own exceptions to the wife’s power to contract. In section 2348 it is provided, that “if the husband be non compos mentis, or has abandoned the wife, or is a non-resident of the State, or is imprisoned under a conviction for crime for a period exceeding two years, the wife may alienate her lands as if she were sole,” and, — as to her personal property, — “if the husband is living apart from the wife, without fault on her part, or if he be of unsound mind, the wife may convey or dispose of such property in any manner as if she were sole.” In the section providing that the wife may, with the consent of the husband expressed in writing, and under the conditions specified, enter into and pursue any lawful trade or business, as if she were sole, it is provided, that “the consent of the husband is not necessary, if he be of unsound mind, or has abandoned his wife, or is a non-resident of the State, or is imprisoned under conviction for crime.” — Section 2350. Again, it is provided, that “all property of the wife, held by her previous to the marriage, or to which she may become entitled after the marriage, in any manner, is the separate property of the wife, and is not subject to the liabilities of the husband,” and that “the earnings of the wife are her separate property.” — Sections 23.41,2342. These statutes, regulating the rights and liabilities of husband and wife, -were designed to furnish a complete system within itself, not dependent on common law rules for its enforcement. "What the wife may do in case of the insanity of her husband, in respect to contracting and taking care of herself and her property, is carefully provided for in the statutes, and it would seem, on a common principle of interpretation, she is excluded from doing anything more in this respect than is authorized by statute. Her power to contract under the statute being specified and limited by the terms of the statute, she is restricted to the mode prescribed. — Ashford v. Watkins, 70 Ala. 160; Scott v. Cotten, supra; Vincent v. Walker, 93 Ala. 169. We have no occasion, thérefore, in this case to apply any of the common law rules invoked in favor of the liability of the appellant, on the bond she gave to indemnify the asylum on the liability of her husband to it for his support. If in any case these rules may be made applicable to a, married woman and her estate, they are wanting in application to the case in hand. The appellant was without authority to enter into any such, obligation as the one here sued on, and it is not binding on her.

Reversed and remanded.

Brickell, C. J., and Coleman, J., dissenting.