78 Ala. 64 (Ala. 1884), Parker v. Wimberly

Citation:78 Ala. 64
Opinion Judge:CLOPTON, J.
Party Name:Parker v. Wimberly.
Attorney:J. F. STALLINGS, for appellant. GAMBLE & RICHARDSON, contra.
Court:Supreme Court of Alabama
 
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Page 64

78 Ala. 64 (Ala. 1884)

Parker

v.

Wimberly.

Supreme Court of Alabama

December Term, 1884

Statutory Claim Suit.

APPEAL from the Circuit Court of Butler.

Tried before the Hon. JOHN P. HUBBARD.

J. F. STALLINGS, for appellant.

GAMBLE & RICHARDSON, contra.

CLOPTON, J.

The power of disposition conferred on a married woman, as to her statutory separate estate, is limited by the statute, and restricted to the specific mode prescribed. She can not divest herself of title to property, real or personal, things in possession or in action, her statutory separate estate, except by an instrument in writing, attested or acknowledged, whether a sale or exchange is intended. The statute makes no distinction in respect to the kind or species of property. Neither can she mortgage or sell her separate estate, to secure, or in payment of her husband's debts; and husband and wife can not contract with each other, for the sale of any property. Code, § § 2707, 2709; Williams v. Bass, 57 Ala. 487; Boyleston v. Farrior, 64 Ala. 574; Simms v. Kelly, 70 Ala. 429.

From the agreed statement of facts it appears, that the claimant delivered to the mortgagee a bale of cotton, which was her statutory separate estate, and which was accepted by him, at a stipulated price, in payment or satisfaction or her husband's debt secured by the mortgage. No instrument in writing was executed by the husband and wife. There was no agreement between the mortgagee and the claimant for the sale of the horse, or its exchange for the mortgage. The agreement that the horse should be the claimant's, in consideration of her payment of the mortgage debt, was between her and her husband. The transaction did not operate to divest her title to the cotton, nor to vest in her title to the horse.-- Pollak v. Graves, 72 Ala. 347; Woods v. Dunlap, 73 Ala. 169. The record does not present the case of a conveyance of property by the husband to the wife, in payment of a debt he owed her, nor of the investment of her money in the purchase of property.

In a trial of the right of property, like this, the claimant must recover on the strength of her title. When the plaintiff shows a prima facie case, the onus is cast on the claimant to establish a legal title in herself--such title as would enable her to maintain trespass, trover, or detinue.-- Shahan v. Herzberg, 73 Ala. 59; Frow v. Downman, 11 Ala. 880. It may be that the claimant has an election, to reclaim...

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