Denechaud v. Berrey

PETERS, J. The question of primary importance in this cause, is the title of Mrs. Berrey to the property in dispute. If it is a separate estate, governed by the statute securing to married women their separate property, then the difficulty is easily solved; but if it is an estate held by some other tenure, which frees it from the limitations o the statute, then a different rule of law must apply. Mrs. Berrey is a married woman and a citizen of this State, and her husband is still living. She was married in 1849. The land in controversy was conveyed to her “for her sole and separate use and benefit,” on the 12th day of August, 1865, by deed of that date. This land is situated in this State, and the deed to her purports to have been made in this State. Her property in it has, therefore, accrued since the passage of the statutes digested in the Code, regulating the estate of the wife. The Code went into operation on the 17th day of January, 1853. — Pamph. Acts 1853-54, p. 87. The first enactment upon the subject of “ securing to married women their separate estates,” in — 604 — this State, was approved on the 1st of March, 1848. The first section of this act shows very clearly the legislative purpose. It is in these words: “That if any married woman, before and at the time of marriage, shall have and own any property or estate, whether the same be real, personal or mixed, in possession, remainder or reversion, or if any such estate shall, after marriage, by descent, gift, demise, or otherwise, accrue to any woman, all such estate and property shall be taken, held and esteemed in law as the separate estate of such woman; and no husband shall, by his marriage, acquire a right to the property which his wife had upon his marriage, or which she may after acquire by descent, gift, demise, or otherwise, except as is hereafter provided for.” — Parnph. Acts 1847-48, p. 79, No. 23. This language was copied into the first section of the act of the general assembly of this State, entitled “ An act to alter and amend the act securing to married women their separate estates, and for other purposes, approved March 1st, 1848,” which amendatory act was approved February 13, 1850. — Parnph. Acts 1849-50, page 63, No. 23, § 1. These two sections of these two important statutes are identically the same in language, as will be seen on comparison. The act of February 13, 1850, repealed all laws and parts of laws in conflict with its provisions. — Section 11. The language of the first section of this latter act is condensed in the Code of Alabama in the following terms: “ All property of the wife, held by her previous to the marriage, or ivhich she may become entitled to after the marriage, in any manner, is the separate estate of the wife, and is not subject to the payment of the debts of the husband.” — Rev. Code, § 2371; Code of Alabama, § 1872. This language is but a synopsis and condensed statement of the section of the act last above referred to. The words “ all property ” take the place of the words “all such estate and property,” used in the original act and the amended a'ct. These words are as broad as the language can make them. They include every thing that can be owned. — Jackson v. Housel, 17 John. 281, 283, (marg.); Morrison v. Semple, 6 Binn. 94; Doe, ex — 605 — dem. Ward, v. Langland, 14 East, 370; Soulard v. United States, 4 Pet. 511; Jackson v. Robins, 16 John. 537, 587, (marg.); Lambert's Lessee v. Paine, 3 Cres. 97, 128. And the words “ in any manner ” refer to the title; that is, to the manner of the holding, and the manner of becoming entitled to the property. “ In any manner,” in such a connection, means “in every manner.” It includes every possible title upon which a claim to property can be supported. Wherever the wife had a right of property, or became entitled to a right of property, the statute intended to “ secure ” it to her, “ as her separate estate,” under “ the provisions” of the Code. — Eev. Code, §§ 2382, 2388. There can be no doubt of the legislative authority to pass such a law in relation to all future acquisitions of the wife. That is the case here. The .property in controversy has been acquired by the wife since the promulgation of the Code; and it is held under that system. Since the Code, the words creating a separate property in the wife are mere surplus-age. This would be the effect of the deed without such words. They do not add to the force of the title, and they can not vary the wife’s rights under the law. The law enters into the title and controls it, where the title in any manner passes to her, in her own name. To me, the language and purpose of the statute is clear and free from doubt. And I have reluctantly yielded my assent to the conclusion, that it does not govern all estates in which the wife has an interest, to the extent of her “estate,” at least, whether the property be conveyed directly to her, in her own name, or to a trustee for her use. Her rights of property in the one instance, as well as the other, need to be “ secured ” and protected. The law for this purpose covers all her property. And her property in this State is not to be condemned for her husband’s debts. As a married woman, she holds all her estate and property “ subject to all the rules, regulations and limitations ” contained in the Code, after that system of law went into operation. — Eev. Code, §§ 2382, 2388. That this statute is free from constitutional objection, I think has never been doubted, Our — 606 — statute has existed for above twenty-three years, and it has never been assailed as wanting in constitutional validity, in any case known to me. Such laws are now common in almost, if not quite, all the States of the Union; and the legislative power to pass them is every where admitted, so far as future acquisitions are concerned.—1 Kent, 455; Nerrill v. Sherburne, 1 N. H. 213; Smith on Stat. and Con. Constr. 412; Cooley on Const. Law, 360, 361, ed. of 1868; Glenn v. Glenn, January term, 1872; Moulton v. Martin, 43 Ala. 651. This exposition of the law governing the separate estate of the wife necessarily brings the estate of Mrs. Berrey in the lands in controversy in this suit under its provisions. In this view of the case, she could not bind herself by the mortgage, either for her husband’s or her own debt, contracted since the Code was promulgated, in the manner that has been attempted in this case.—Wilkinson et al. v. Cheatham et al., 45 Ala. R. 337; Bibb v. Pope, 43 Ala. 190; Warfield v. Ravesies and Wife, 38 Ala. 518. The decree of the learned chancellor in the court below-was, therefore, correct, and it must be sustained. The decree of the court below is affirmed, and the appellants will pay the costs of this appeal in this court and in the court below. Note by Reporter. — At a subsequent day of the term, appellant applied for a rehearing, and filed in support thereof the following argument: Motion is made for a rehearing in this cause, on two points which have not been the subject of consideration by the court. The record shows that John C- Berrey, the insolvent husband of Mrs. Berrey, (and who certainly did, if Mrs, Berrey did not, get the money of Mrs. Denechaud,) himself bought and caused to be paid for out of his own money, the land in controversy, which he procured to be conveyed by Herbert and wife to Mrs. Berrey, and which Berrey and wife mortgaged to Denechaud to secure the repayment of that money. — 607 — Mrs. Berrey herself says in her first deposition, “ I did not obtain the money with which the land spoken of * * * was bought. * * It was not bought with my money. The money was not given to me at all. It did not pass through my hands; but the place was bought by Mr. Berrey and deeded to me.” And in reply to first interrogatory at same time, Mrs. Berrey says: “Mr. Berrey bargained for the place and bought it. Mr. Berrey procured the deed to be made. The place was paid for by Mr. Berrey, and with his money. My brother accepted the drafts which were given in payment for the place, and paid them;” but, as she says, with Mr. Berrey’s money. This testimony was given in presence of her father, who was examined at the same time, and on the same interrogatories and cross-interrogatories, each alternately, first on the former, and then on the latter; and although her husband and she again, several months afterwards, were examined, no contrary evidence was given; and there is no pretense that this evidence is not correct. Now, the money of this insolvent man being invested in this land, and it being mortgaged by both husband and wife to secure the payment of the money borrowed by both upon a note signed by both, will not the court require those who seek equity also to do equity? Will a court of equity actively aid them to get back the land, except upon the condition that they will pay back the money they received, and the taxes and cost of repairs? To require them to do this, in favor of the unfortunate Mrs. Denechaud, who is now left almost penniless, does not interfere with the point chiefly established by the court, but requires the plaintiff to do equity on the condition of receiving the aid of the court. — 1 Story’s Eq. Jur. § 64e, 2. The decree of the chancellor affirmed by this court directs that the note signed by Berrey himself, as well as by his wife, shall be cancelled and delivered up; and so that no recourse shall be had against John C. Berrey even. This surely can not be intended by the court. — 608 — Again, Mrs. Denechaud has been paying taxes, insurance, cost of repairs, &c., as set forth in the answers; yet, the decree referring it to the master for an account of the rents, does not instruct or authorize the register to make any allowance for these things. At the succeeding term, the application was denied.