Canty v. Sanderford

STONE, J. We think the circuit court erred in both features of its charge to the jury. Tile act of 1850 (§ 5). declares, that “ such property [that is, property belonging to the wife’s separate estate secured to her under that act], may. .be sold by the husband and wife, and' conveyed by their joint deed.” — Session Acts 1849-50, p.'64. The Code (§ 1984). declares, that the separate property of the' wife “ may be sold by the husband and wife, and-coriveyed’ by them.jointly, by instrument of writing attested by two’ witnesses.. — See Durden v. McWilliams, 31 Ala. 440. “ These provisions are obviously restrictive of the right of disposition, and were doubtless intended to prohibit any sale of the wife’s property, except such-as might be made by the husband and wife.” — Alexander v. Saulbury, at the present term, and authorities-there cited- The “ doctrine of estoppel, for a mere omission to assert one’s right, does not apply to the wife, where her husband makes an unauthorized sale of her property.'in, her presence.” — Drake v. Glover, 30 Ala. 390. Bevcrsed-and remanded.