70 Ala. 429 (Ala. 1881), Simms v. Kelly

Citation:70 Ala. 429
Opinion Judge:STONE, J.
Party Name:Simms v. Kelly.
Attorney:THOS. M. PETERS, and WM. COOPER, for appellant. CLARK & HARRIS, contra.
Court:Supreme Court of Alabama

Page 429

70 Ala. 429 (Ala. 1881)

Simms

v.

Kelly.

Supreme Court of Alabama

December Term, 1881

Bill in Equity by Wife, for Cancellation of Mortgage on Lands claimed as her Statutory Estate.

APPEAL from the Chancery Court of Lawrence.

Heard before the Hon. H. C. SPEAKE.

THOS. M. PETERS, and WM. COOPER, for appellant.

CLARK & HARRIS, contra.

STONE, J.

The ante-nuptial conveyance made by Edgar T. Simms to Miss DeGraffenreid contains no words which exclude the marital rights. It was executed and delivered while the grantee, the appellant in this cause, was a femme sole, and conveyed to her a life-estate, with reversion to the grantor. She, consequently, became and was a life-tenant of the freehold when she became the wife of Dr. Simms. This brings her title to the land in controversy directly within the influence of the constitution, and of sections 2505 and 2506 of the Code of 1876. It is property which was held by her previous to the marriage. By the marriage, the property vested in her husband as her trustee, but not as property in him. His right to manage and control her property, his exemption from liability to account with the wife, her heirs or legal representatives, for the rents, income and profits, do not, as once supposed, constitute property; for he may be removed from the trust, and from all right to manage and control the property, or its income and profits, if he abuse the trust reposed in him. So, if the wife survive the husband, her right to manage and control her estate, and to administer its income and profits, becomes as absolute as if she had never married.-- Lee v. Tannenbaum, 62 Ala. 501. It is a mistake to suppose that, by marriage, her husband acquires a life-estate in the wife's property. On this false assumption, the argument was made, and seems to have convinced the chancellor, that because the deed made by Dr. Simms to Miss DeGraffenreid purported to convey only a life-estate, and because by the marriage, which the deed contemplated, that life-estate would and did re-vest in Simms, the grantor, the deed itself could have only an equitable operation, and vested no legal title in the grantee. We have shown above that the premise is unsound. The conclusion is equally untenable.

The land being the statutory separate estate of Mrs. Simms, her conveyance in payment of, or security for the debt of her husband, was inoperative, and a nullity.-- Williams, Birnie & Co. v. Bass, 57 Ala....

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