Maxwell v. Grace

• Decision Date: 15 January 1889
• Citation: 5 So. 319,86 Ala. 577
• Parties: MAXWELL v. GRACE.
• Court: Alabama Supreme Court

5 So. 319

86 Ala. 577

MAXWELL v. GRACE.

Supreme Court of Alabama

January 15, 1889

Appeal from circuit court, Fayette county.

This action was brought by Mrs. Annie E. Grace, the wife of B. E Grace, to recover the possession of a tract of land, and was commenced on February 10, 1888. Mrs. E. F. Maxwell intervened as landlord of the tenant in possession, and pleaded not guilty; and the cause was tried on issue joined on that plea. The plaintiff claimed the land under a deed of conveyance from her husband, dated January 6, 1885, and which recited as its consideration an indebtedness of $150 on account of money loaned to him by her, belonging to her statutory separate estate; while the defendant claimed under a sheriff's deed, dated March 1, 1886, as a purchaser at a sale under an execution against the said B. E. Grace, plaintiff's husband. The court charged the jury "that they must find for the plaintiff if they believed the evidence." The defendant excepted to this charge, and she now assigns the giving of the same as error.

McGuire & Collier, for appellant.

Ne Smith & Sanford, for appelleee.

STONE C.J.

We have had several statutes securing to married women their separate estate. The act of 1850, substantially conformed to by the Code of 1852, materially modified the act of 1848. Yet we have held that estates acquired under the former statute, and held February 13, 1850, (Sess. Acts, 63,) the time when the later statute was approved, passed immediately under its provisions, and thenceforth were governed by them. Such was the statutory provision. Rev. Code, § 2388; Code 1876, § 2722; Cannon v. Turner, 32 Ala 483; Warfield v. Ravesies, 38 Ala 518. So property acquired by the wife under either of the former statutes, and held on the 28th February, 1887, (the date of our latest enactment on the subject,) passed immediately under the dominion of the act "to define the rights and liabilities of husband and wife," and thereafter was governed by its provisions. Sess. Acts 1886-87, p. 80; Code 1886, §§ 2341-2356; Rooney v. Michael, 84 Ala. 585, 4 South. Rep. 421. In May, 1883, Caine and wife conveyed the lands in controversy to B. E. Grace, husband of Annie E., on a recited consideration of $800 paid. In January, 1885, B. E. Grace, reciting a consideration of $150, which his wife had lent him,-her statutory separate estate,-conveyed the lot in controversy by deed directly to her. Under all our rulings a deed of land, at that time, from husband directly to his wife, was absolutely void at law, and conveyed no title. This left the legal title in the husband, but conveyed an equity to the wife, if the transaction was otherwise free from valid objection. But so far as legal rights and remedies were concerned, the title was in the husband, who alone could sue or defend at law. Powe v. McLeod, 76 Ala. 418; McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67; Warren v. Jones, 68 Ala. 449; Carrington v. Richardson, 79 Ala. 101. If the legal title to the lot in controversy had remained in B. E. Grace until the approval of the act of February 28, 1887, the question of transmitting her equity into a right to maintain or defend an action at law would have pertained only to the remedy, not to the title. That statute, as we have seen, converted her equity into a right to...