Holly v. Flournoy

BRICKELL, C. J. No objection was made in the circuit court to the substitution of a complaint, nor does it indeed appear otherwise than as matter of inference from a memorandum in the transcript, which may have been an indorsement on the complaint that there was a substitution. If it was intended to -revise the action of the court in allowing the substitution, if it was allowed, the facts ought to have been entered of record. We cannot, on a mere inspection of an affidavit found in. the record, not shown to have been brought to the notice of the court, or acted on by it, presume there was a substitution, and such affidavit the only evidence on which it was allowed. The demurrer to the complaint was not well taken. It is not wanting in certainty, but discloses that the plaintiff, as trustee of a married woman, claims a horse in specie, it is averred the defendant detained from him. Nor does it appear from the complaint the suit should have been in the name of the married woman. There is nothing indicating the property sued for is her statutory separate estate, and it is only for the corpus of such estate she is required to sue in her own name. The declarations of Watson, the husband, were properly rejected as, evidence. It was not shown they were made prior to the deed under which plaintiff claimed, and consequently they ought not to have been received. [103] Tlxe deed from Watson to the plaintiff, conveying the horse sued for, and other property, was properly received in evidence. If there is any force in the specific objection made to it, that it was a contract between husband and wife, the objection was not true in point of fact. The wife is not a party to the deed. The only parties are the husband and the trustee, the plaintiff. The record from Florida was not certified by the judge of the court in which the proceedings embodied in it were had, and was for this reason properly excluded. The certificate of the judge conforming to the act of congress, (R. C., p. 86), is essential to the authentication of a record of judicial proceedings from a sister State. The deed recites the husband had received moneys and personal property, the statutory estate of the wife, which he had used in the purchase of property, real and personal, taking title to himself. For the protection of the wife, it purports to be made. If the husband could properly have invested money, the corpus of the. wife’s statutory estate, in the purchase of property, taking the title to her, making the purchase in his own name and taking title to himself, the wife had the equity of every cestui que trust- to pursue the funds, and either to take the property or to charge it with the payment of the money employed in its purchase.—Marks v. Cowles, 53 Ala. 499. This right is strictly equitable, and can be asserted only in a court of equity. Until it is asserted, the husband has the legal title, which he may transfer, and his transferee, if not a bona fide purchaser without notice, takes it charged with the equity. The statute which requires the wife to sue alone at law, when the suit relates to her separate estate, has no application to equities of the wife, nor to a separate estate created by deed, and not by the statute.—Bolling v. Mock, 35 Ala. 727. The charges given, except that referring to the measure of recovery, were correct in this view. The charge as to the measure of recovery, is not strictly correct. In detinue, as in trover, the jury may assess the highest value of the property, at any time between the commencement of suit and the trial, but they are not bound to do so—Johnson v. Marshall, 34 Ala. 521. The charge as given, however, did not injure the appellant, as it appears the value assessed by the jury was not the highest the evidence would have warranted. It does not appear from the bill of exceptions there was any evidence contradictory of the evidence of the witness Watson or assailing his credibility. The charge asked in [104] reference to tbe weight of the testimony of a witness discredited was therefore abstract. The judgment must be affirmed.