Ramage v. Towles

• Decision Date: 31 January 1889
• Parties: RAMAGE v. TOWLES.
• Court: Alabama Supreme Court

5 So. 342

85 Ala. 588

RAMAGE v. TOWLES.

Supreme Court of Alabama

January 31, 1889

Appeal from chancery court, Chambers county; S. K. MCSPADDEN Chancellor.

J M. & E. M. Oliver, for appellant.

N D. Denson, for appellee.

SOMERVILLE J.

1. The bill was filed May 22, 1888, after the present Code went into effect, by Mrs. Towles to enforce a vendor's lien on certain lands sold by her to the defendant, Mrs. Ramage, who is a married woman. The note for the purchase money was signed by both Mrs. Ramage and her husband. It is not and cannot be insisted that the coverture of Mrs. Ramage was any defense to the enforcement of the vendor's lien. Crampton v. Prince, 83 Ala. 246, 3 South. Rep. 519. It is insisted by demurrer that the husband was a necessary party to the bill. Under the provisions of the present Code, a married woman may be sued alone on any of her contracts or engagements, where any person sui juris could be sued alone under the same state of facts. Section 2347 reads as follows: "The wife must sue alone at law or in equity, upon all contracts made by or with her, or for the recovery of her separate property, or for injuries to such property, or for its rents, income, or profits, as for all injuries to her person or reputation; and upon all contracts made by her, or engagements into which she enters, and for all torts committed by her, she must be sued as if she were sole." Code, 1886, § 2347.

The real estate sought to be subjected to a vendor's lien is clearly the statutory separate estate of Mrs. Ramage, the title being conveyed by deed directly to her without the intervention of an active trustee for her benefit. Id. § 2351. In this property, the husband has no interest which requires the protection of the courts. The effect of the act of February 28, 1887, defining the rights and liabilities of the husband and wife, and now embraced in the present Code, (§§ 2341-2351,) is to remove the husband from the trusteeship of his wife's statutory separate estate, and to abrogate all his marital rights incident to this relation. This office of trustee being created by statute can be taken away in like manner. Rooney v. Michael, 84 Ala. 585, 4 South. Rep. 421; Robinson v. Walker, 81 Ala. 404, 1 South. Rep. 341; Halliday v. Jones, 57 Ala. 525. He now has no title, legal or equitable, to such estate, and no rights to the rents income, or profits. The only right left him is a right to veto an alienation of the property by the wife without his assent and concurrence, except in certain cases. Code, § 2348. His relation as husband did not require that he should be made a party; and, while his relation as surety or co-maker of the...