Walker v. Fenner

RICE, C. J. The decision of this case cannot be influenced by any of our statutes, in relation to the rights which the husband acquires by the marriage to the property of his wife; because the facts, upon which the rights of the parties now before us depend, occurred before the adoption of any of those statutes. When an estate in remainder, of slaves, has vested in the wife under a will, and, by the assent of the executor, has become a legal interest, and the possession is with the person having the precedent particular estate, and no adverse possession is shown, such vested legal interest of the wife, according to our decisions, passes by the marriage to the husband; and if her said interest be that of a tenant in common with [373] others, then, on 'the marriage, she ceases to be a tenant in common with them, and her husband is substituted for her as a tenant in common with them. — Magee v. Toland, 8 Porter, 36; Pitts v. Curtis, 4 Ala. R. 350; Broome v. King, 10 Ala. R. 819; Chambers v. Perry, 17 Ala. R. 726; Gibson v. Land, 27 Ala. R. 117. We are aware that, in this respect, there are decisions of the courts of some of our sister States opposed to our decisions, and that some of the reasoning of our own court in the case of Mason v. McNeill, 23 Ala. R. 208, is also opposed to what we have above stated to be the law as settled by our former decisions. — McBride v. Choate, 2 Iredell’s Eq. Rep. 610; Whitehurst v. Harker, 2 Iredell’s Eq. Rep. 293; Weeks v. Weeks, 5 ib. 111; Swanson v. Swanson, 2 Swan’s Rep. 446; Hall v. McLain, 11 Humph. Rep. 425. But our former decisions, to which we adhere, are sustained by several decisions of the courts of our sister States, and by what we deem far more satisfactory — uncontroverted elementary principles; some of which we will now state : By marriage, the husband and wife are as one person in law. There can be no partnership, nor community of goods, between them. Her personal chattels in possession vest absolutely in him. In the absence of any adverse possession, the possession of the tenant for life, under the instrument creating the estate for life and the remainder in a personal chattel, is the possession of the remainder-man. The possession of one tenant in common is the possession of all of them, until there has been a conversion or ouster by one of them. Pettyjohn v. Beasley, 4 Dev. Rep. 512; Stephens v. Doak, 2 Iredell’s Eq. Rep. 348; see also the authorities cited in my opinion in Gibson v. Land, 27 Ala. Rep. 117; Pollard v. Merrill, 15 Ala. R. 169. 'All the plaintiffs in an action must be entitled to recover; otherwise none of them can recover in it. — Hardeman v. Sims, 3 Ala. R. 747; Cochran v. Cunningham, 16 ib. 448; Patton v. Crow, 26 ib. 426. It results from what we have above said, in connection with the admitted facts, that Mary H. Johnson, the wife of Julius Johnson, had no interest in the slaves sued for at the commencement of this suit, and that she was not entitled to [374] recover upon the facts admitted. Making her a plaintiff with the others, was a misjoinder of plaintiffs; and such mis-joinder was, per se, enough to defeat a recovery upon the facts shown in this record. The co»rt below erred in overruling the demurrer to the evidence; and its judgment is therefore reversed, and the cause remanded.