Vaughan v. Borland

FOSTER, Justice. In the absence of evidence to the contrary, possession of property raises a rebuttable presumption of ownership, but we do not suppose there is any question but that the presumption obtains when property is jointly possessed by persons other than members of the same family. At common law,- the personalty of the wife became vested in the husband. Under section 6, article 10, Constitution of 1875, she was given a right to certain separate property, which by the Act of February 28, 1887 (section 2341', Code of 1886), was not subject to his debts, and her title to property and right ■ to contract were thereby further enlarged. Later such rights were again enlarged as appears in the Code of 1907, § 4486 et seq., in the Code of 1923 in § 8261 et seq., so that she is now without any disability in respect to her contracts, except she can *415 not become her husband’s surety, and she can contract and bind herself and her property without his consent and concurrence, except as to the alienation of her lands (and there is a somewhat similar disability applicable to the husband in respect to his realty), and she is solely liable for her personal torts. All her personalty is her own, absolutely free from any right of the husband in it, its management or use, or the right to dispose of it. In this respect she is on an equal footing with the husband. All her earnings are her own; but with no compensation for services rendered the husband or family. Section 8262, Code. This exception is probably to offset the duty of the husband to support the family and to provide for their necessities. The evidence in this case is consistent with the theory that both husband and wife had money. It was the primary duty of the husband to spend ,his money for family expenses. The money, as found, was arranged very much as a woman, rather than a man, would have done. These circumstances are cited not as being sufficient to support an inference that it was hers solely, but to show that there is nothing to support an inference that it belonged to the husband solely. Consistent with all the evidence, it might have belonged to one as well as to the other, or to both jointly. So that the inquiry seems to be controlled by the effect of this joint possession. Their possession was joint. Cole v. Varner, 31 Ala. 244, 251. When there is a joint possession by husband and wife, the law refers the legal possession to the one who has the title, if that can be ascertained. Cole v. Varner, supra; Anglin v. Thomas, 142 Ala. 264, 37 So. 784; Larkin v. Baty, 111 Ala. 303, 18 So. 666; Wortham v. Gurley, 75 Ala. 356; Patterson v. Kicker, 72 Ala. 406. But we have no case, which I have found, which holds that in a controversy between husband and wife, there ever was said to exist a presumption of law in Alabama that the property was that of the husband, putting the burden on the wife to prove title in her in whole or in part, rather than in him. There is not much help to be had from the decisions of other states as shown in the text and notes to 30 Corpus Juris 578, § 109, page 835, § 495; 1 Schouler on Marriage and Divorce § 344. Without now denying a rule which would allow an administrative presumption in favor of a creditor of the husband levying on property as his, which is in the joint possession of husband and wife, nor likewise a rule which would allow such an administrative presumption in favor of a creditor of the wife levying on property as hers, which is in their joint possession, since they would ordinarily be peculiarly possessed of knowledge of such ownership rather than the creditor, we think that considering the present status, of a married woman’s property rights there is a presumption of their joint ownership of personal property jointly possessed by them when the question of ownership arises in a controversy between them or their personal representatives, respectively, and the evidence does not show whether one or both own it. We see no reason to penalize the wife in respect to presumptions when she is not penalized with respect to the incidents of ownership and possession in any other respect. As to their personalty, the rights of ownership, enjoyment, and disposition by husband and wife, respectively, are the same as between strangers in social relation. They are necessarily in the joint possession of much personal property. That possession as between them should not reflect upon her right to sustain a claim of ownership. We think their joint possession of such property raises a presumption of joint ownership, which gives way to direct or circumstantial evidence to the contrary, sufficient to lead to a different conclusion. The effect in this case of that holding is that the money in question should be equally divided between the two estates, after the amount of all lawful charges are deducted and paid. And when these administrators come on to settle their estates, respectively, and it becomes necessary to ascertain the distributees of each, there will be no presumption that either died first, so that neither can share in the estate of the other as such distributee, unless they shall obtain some evidence not now appearing in this record from which a reasonable inference (not a mere conjecture) may be drawn that one or the other in fact died first. That there is no presumption as to survivorship as between husband and wife the members of the court are in agreement, since such presumption was a rule of civil law, and did not prevail at common law, *416 nor has it been recognized in this country. 8 R.C.L. 716, 717; 17 Corpus Juris 1179, § 32; Young Women’s Christian Home v. French, 187 U.S. 401, 23 S.Ct. 184, 47 L. Ed. 233. The decree is reversed and the cause is remanded to the court below to be proceeded with in accordance with these views. Reversed and remanded. ANDERSON, C. J., and THOMAS, BOULDIN, and BROWN, JJ., concur. GARDNER and KNIGHT, JJ., dissent.