Bender v. Reynolds

COLLIER, C. J. In Cook v. Kennerly & Smith, at this term, an agreement was entered into by Kennerly and wife in anticipation of their marriage, by which the personal estate of the latter was conveyed to a trustee for the use of herself and intended husband during their lives; at the death of either of them to the use of the survivor during his or her life; at the death of such survivor, then. to such child or children of the intended wife, and the lineal descendants of such child or children, as may be then living, to them and their heirs forever. This deed of settlement also gave to the wife the power of disposing of the property embraced by the same, by writing under seal, &c., to take effect after her death. It was held, that the deed, so far from divesting the dominion of the husband over the estate of the wife, actually guarantied to him a right to it during his life; that this is clearly indicated by the terms of the deed, and it cannot be said that the husband had no interest in the property,or that [456] he ever would have assented to the creation of an inalienable separate estate in the wife. Further, that the husband, in virtue of his marital rights, became the owner of all the interest which the deed had conferred upon his wife, during their joint lives, and though a trustee was interposed, yet upon the property coming into the possession of the husband, it was liable to a levy and sale under execution, to pay his debts. This latter conclusion it was supposed was a clear result of the principle which maintains, that the chattel interests of the wife when reduced to the possession of-the husband, are his property, and she cannot hold with him, either as a joint tenant, or as a tenant in common. It was admitted that where an interest is given to a woman and her children for their support and maintenance, &c., that the husband of the woman, in virtue of her marriage will have no right which can be sold under execution at law,* but the creditor’s remedy, if any, is in equity, where the interests of the wife and children 'can be separated. The conclusion was, that the life estate of the husband and wife, during the lifetime of the former, in the slaves in question, were liable at law for the debts of the husband. The deed in the case at bar, expressly declares, that immediately after the solemnization of the marriage of the husband and wife, that the right to the slaves, and the issues,, profits and labor of the same, as well as the interest of the' bonds embraced by the settlement, shall be held by the trustee for their joint and equal use and benefit during their joint lives, and after the death of one of them, then to the survivor, &c., without being in any manner subject to the debts of the husband, &c. This deed, like that in the case cited, excludes the idea of a separate estate in the wife, by giving her such an interest until the marriage is consummated, and declaring that she shall afterwards hold jointly with the husband. The possession of the husband then, invests him with a title to the property settled, in virtue of his marital rights, during the life of himself and wife, and makes it subject to seizure by execution, unless the declaration that it shall not be subject to his debts shall prevent it from having such an effect. In Rugely & Harrison v. Robinson, et al. 10 Ala. R. 702, [457] the testator gave to his son and family real and personal estate, which lie declared should not be subject to his son’s debts. My brethren were of opinion that “ whatever a debtor can himself claim to enjoy, as a general use, benefit or interest in property, capable of separation and division, may be reached by his creditors” — “ that no one can have a legal or equitable right to property, which is not subject to the páyment of his debts, either at law, or by a proceeding in equity, according to the nature, of the case.” Consequently it was held, that the exemption which the will attempted to give to the property bequeathed, from the son’s debts, was opposed to the law, and therefore inoperative. I dissented from the opinion of my brethren in the case referred to — their judgment however, settles the law of this court, and as it is my duty, I of course acquiese in it. Here then is an- authority which determines that the declaration in the deed of settlement, exempting the estate from the husband’s debt cannot be supported. The case first cited, maintained, that the marital rights of the husband invest him with an estate, notwithstanding the settlement, exclusive of his wife during his life ; and this estate, when coupled with the possession, may be sold under execution at law, although a trustee was interposed as the legal depository of the title. If the deed of settlement is invalid against the creditors of the husband while he lives, the bill of sale must be alike inoperative ; for the latter rests upon, and is dependent on the former. It declares that the trustee shall hold the slaves which it embraces, to the uses and trusts of the settlement. The money which the trustee paid over to the husband, vested in him at least for his life, and the slaves which he substituted for the money, stand in the same situation as it respects the husband’s rights. This is a legal truism which is best illustrated by its statement. Whether, if it was shown [that the laws of South Carolina, either statute or common, recognized the settlement in question as vesting the wife with an estate which prevented the property from being subject to the husband’s debts, the courts of this State would not sustain it, is a question not presented tn the record. Where the statutes, or the judicial decisions [458] of a sister State are relied on, they should be proved as facts in the primary court, and if not thus brought forward and referred to in the record, they will not be noticed on error. [Inge v. Murphy, 10 Ala. R. 885.] If however, the decisions of South Carolina go no further than to determine, that to subject the husband’s life estate it is necessary to resort to equity — maintaining that he has an interest which is severa-ble from his wife’s, we should hold that such decisions would not be authoritative here; as they would not be decisive of any question of right, but have respect merely to the tribunal in which a remedy should be sought. [Cook v. Kennerly & Smith, ut supra. The view we have taken of this case is adverse to the rulings of the circuit court. What we have said will furnish a guide to ulterior proceedings; we need therefore but add that the judgment is reversed and the cause remanded.