Wilson v. Sheppard

WALKER, J. The incompetency of husband and wife to testify for or against each other, unless in a few excepted instances, has its foundation not merely in the identity of their legal rights, but in a wise public policy. No abandon [628] ment, or intention to abandon that policy, is indicated by the statutes securing to man’ied women their property separately from their husbands. There is nothing in those statutes from which we can infer a legislative purpose to mar the sacred confidence of married life, and to open the door for broils and dissension, by permitting husband and wife to testify for or against each other. ■ That the rule which renders the husband and wife incompetent witnesses for or against each other is abolished, cannot result from the severing of their pecuniary interests to a certain extent, because the rule was not founded merely upon the identity of those interests. In 2 Bright on Husband and Wife, page 42, it is said, that the wife is a competent witness in a suit to which the husband is a party, “ when, from the nature of the inquiry, the nature of the information to be expected is peculiarly within the knowledge of the wife, and when to exclude such evidence would occasion insecurity to that relation in society, which it is the object of the rule to protect.” Under this rule, the competency of the wife to testify against one charged with her forcible abduction and marriage, or against her husband for injuries to her person, and in the like cases, is admitted; but it is susceptible of no construction favorable to the competency of the husband to testify for the wife in such a case as this. In some cases, an agent is a competent .witness, notwithstanding his interest in the event of the suit, from the necessity of the case. — Bean v. Pearsall, 12 Ala. 592. But this exception to the general rule “ should never be allowed, in a cause which involves the fraud, negligence, or tortious act of the agent.” — Griggs v. Woodruff, 14 Ala. 13. In this case, the question, whether the husband has made a fraudulent transfer to his wife, is involved; and therefore, conceding that there is an analogy between the objection to competency for interest, and for the marriage relation existing between the witness and the party, the husband would not be a competent witness in this case. We prefer, however, to place our decision upon the ground, that the husband and wife are incompetent to testify for or against each other upon principles of public policy; and that incompetency applies, where the husband is called upon to testify as to his acts in the capa [629] city of trustee for his wife. The law has never made any exception to the general incompetency of the husband to testify for the wife, because the subject of the testimony was bis acts as trustee ; and we do not think there is anything in our laws which demands the creation of a new rule. We decide, in this case, that the husband was incompetent to testify as a witness. If the husband, holding the funds of his wife, not consisting of the income or profits of the wife’s separate estate, should purchase property with those funds, and take the title in his own name, the law would compel him, at the instance of the wife, to convey the property to her. If he should make such a conveyance voluntarily, even though it was done for the purpose of keeping his creditors from taking the property in payment of his debts, his conveyance will be sustained, because he must be regarded as having well done that which the law would have compelled him to do. — Elliott and others v. Horn, 10 Ala. 348. The charge of the court was inconsistent with the law thus laid down; and for that reason, the cause is reversed and remanded.