Gerald v. McKenzie

GOLDTHWAITE, J. As there was no trustee provided by the marriage settlement, the legal title necessarily vested in the husband by the marriage, if he reduced the property into possession, for the reason, that the separate estate created in the wife by the settlement is the creature of equity alone, and the possession could not in a court of law be referred to it, and must therefore be considered as attaching to the husband in that character. We concede that, having the legal right, he might have maintained an action at law for any direct or consequential injury done to the property, and, also, that he might interpose a claim and try the right under sections 2581, 2588, 2589, &c., of the Code. We agree, also, that the mere fact that a trust has been [170] created, is not, of itself, sufficient to carry the property into equity, and give jurisdiction to that court to determine disputes which may arise in relation to it (Colburn v. Broughton, 9 Ala. 351 ; Marriott v. Givens, 8 Ala. 694); and this principle applies, in cases where there is some one who is not only clothed with the legal title, but invested with the duty of executing the trusts. In such case, there is an obligation resulting from the acceptance of the trust, to take such measures as may be essential to its protection. But by the law of marriage, no such duty devolves upon the husband. He may assert his legal title in a court of law, if he chooses to do so, but the wife cannot demand it of him ; and she can at once apply to a court of equity, which interposes to protect the trust created for her benefit, on the ground that the law confers upon her no right to call upon another to interfere in her behalf, in a legal tribunal. This identical question was, in fact, decided in Crabb v. Thomas, 25 Ala. 212. It is urged, however, on the part of the appellee, that under the Code (§ 2131) the wife is authorized to sue in her own name, in a court of law, whenever the suit relates to her separate estate. Whether the terms of this section are broad enough to warrant a suit by the wife for damages, for the injury or conversion of the property to which the section applies, or to institute in her own name a claim to try the right, it is unnecessary now to decide, as we are of the opinion that the section referred to does not apply to the separate estate of the wife which, as in this case, was not created by the law, but by the act of the parties before the existence of the law. What we mean by this is, that the statute has created for the wife an estate, which it has declared shall not be subject to the debts of the husband (Code, § 1982), and to which certain incidents are attached (§§ 1983, 1987, 1989); and this estate is the only separate estate which the Code recognizes, and its provisions have no application to equitable estates or interests in the wife which were created by the act of the parties before the passage of any statute, and to which other and different incidents attach. It follows, that as Mrs. Gerald could not sue at law as a feme sole, nor call upon her husband as a matter of right to interpose his legal title for her protection, chancery is the [171] only forum to which application could be made ; and although the bill is in form the bill of the husband and wife, yet, as in substance and in fact, it only concerns the separate estate of the wife, and seeks only to establish her rights and protect her interests, and asks no relief for or against the husband, he will be regarded as her next friend, or trustee, and the bill taken as if it had been thus framed. — Michan & Wife v. Wyatt, 21 Ala. 813. In relation to the merits of the suit upon the evidence, we say nothing, for the reason, that they were not passed upon by the chancellor. Decree reversed, and cause remanded ; the appellees paying the costs of this court.