72 Ala. 347 (Ala. 1882), Pollak v. Graves

• Citation: 72 Ala. 347
• Opinion Judge: BRICKELL, C.J.
• Party Name: Pollak & Co. v. Graves.
• Court: Supreme Court of Alabama

Page 347

72 Ala. 347 (Ala. 1882)

Pollak & Co.

v.

Graves.

Supreme Court of Alabama

December Term, 1882

Statutory Claim Suit for Horses.

APPEAL from the Circuit Court of Lowndes.

Tried before the Hon. JOHN MOORE.

BRICKELL, C.J.

Under the statutes, a married woman takes and holds property to her sole and separate use, having therein a legal estate. But upon her the statutes do not confer a general power to dispose of such property. The power of disposition is limited, and is confined to the specific mode the statutes prescribe. The joint conveyance in writing of herself and husband, attested or acknowledged, is the only mode of disposing of such property that will operate to divest her title, whether a sale is intended, or an exchange--the bartering one article of personal property for another.-- Smyth v. Oliver, 31 Ala. 39; Whitman v. Abernathy, 33 Ala. 154; Warfield v. Ravisies, 38 Ala. 518; Bolling v. Mock, 35 Ala. 727; Evans v. English, 61 Ala. 416; Williams v. Auerbach, 57 Ala. 90. The black horse, having been purchased with the moneys of Mrs. Graves, was her separate property. In making the purchase, the husband may have been the active agent; but it was within the line of his duty as trustee to invest the money of the wife, and having invested it in the purchase of the horse, not taking title to himself, the legal title enured directly to the wife. The exchange of the horse subsequently, though with the assent of the wife, not having been consummated by the joint transfer in writing of herself and husband, attested or acknowledged, did not divest her legal title, nor clothe her with title to the mare received in exchange. In the absence of statutes otherwise requiring, the title to personal property may be created or divested without writing. The effect of the statute enabling husband and wife to dispose of the separate statutory estate of the wife, not distinguishing between real and personal property, or between things in possession and things in action, is, that the title of the wife can not be divested without writing, whatever may be the kind or species of the property. If Mrs. Graves has an election, either to reclaim the black horse, or to ratify the exchange and take the mare, it is by virtue of the doctrine of implied or constructive trusts, of which a court of equity only can take cognizance and enforce.-- Bolling v. Mock, supra; Evans v. English, supra. The title to the grey mare not...