Pollak & Co. v. Graves

BBIGKELL, C. J. Under the statutes, a married woman takes and holds property to her sole and separate use, having.. [350] therein a legal estate. But upon her the statutes do not confer a general power to dispose of such property. The power of disposition is limited, and is confined to the specific mode the statutes prescribe. The joint conveyance in writing of herself and husband, attested or acknowledged, is the only mode of disposing of such property that will operate to divest her title, whether a sale is intended, of an exchange — the bartering one'article of personal property for another.—Smyth v. Oliver, 31 Ala. 39; Whitman v. Abernathy, 33 Ala. 154; Warfield v. Ravisies, 38 Ala. 518; Bolling v. Mock, 35 Ala. 727; Evans v. English, 61 Ala. 416; Williams v. Auerbach, 57 Ala. 90. The black horse, having been purchased with the moneys of lyirs. Graves, was her separate property. In making the purchase, the husband may have been the active agent; but it was within the line of his duty as trustee to invest the money of the wife, and having invested it in the purchase of the horse, not taking title to himself, the legal title enured directly to the wife. Tne exchange of the horse subsequently, though with the assent of the wife, not having been consummated by the joint transfer in writing of herself and husband, attested or acknowledged, did not divest her legal title, nor clothe her with title to the mare received in exchange. In the absence of statutes otherwise requiring, the title to personal property may be created or divested without writing. The effect of the statute enabling husband and wife to dispose of the separate statutory estate of the wife, not distinguishing between real and personal property, or between things in possession and things in action, is, that the title of the wife can not be divested without writing, whatever may be the kind or species of the property. If Mrs. Graves has an election, either to reclaim the black horse, or to ratify the exchange and take the mare, it is by virtue of the doctrine of implied or constructive trusts, of which a court of equity only can take cognizance and enforce.—Bolling v. Mock, supra; Evans v. English, supra. The title to the grey mare not having vested in Mrs. Graves, her claim can not be supported. A claimant, in a trial of the right of property, must recover upon the strength of his own title, and not upon the weakness or want of title in the defendant in execution or attachment. When it is shown by the plaintiff that, at the time of the levy, the defendant had possession of the property, a presumption of ownership arises. The presumption can be repelled only by the claimant proving title in himself, or connecting himself with the true title, if it be not in the defendant. It is immaterial to him whether the defendant has title, or whether it resides in a stranger.' — 2 Brick. Dig. 480, § 67. The mare may not be the property of the husband. The person with whom the exchange was effected [351] may have a right to rescind it. If this be true, it will npt aid Mrs. Graves’ claim. The mare Lillie was purchased by the husband, with money he had borrowed on liis own credit. The fact that the purchase was made at the request of the wife, is unimportant. She has not the capacity to contract for the purchase of property, or to acquire and hold it by purchase, unless the consideration of the purchase is derived from her statutory separate estate. The subsequent payment by the husband of the money he borrowed to make the purchase, with the moneys of the wife, rendered him the debtor of the wife, but it did not create any trust of the title to the mare. The title vested in him on the purchase, and the mare became subject to the payment of his debts. From what has been said it follows, that there was error in the rulings of the-court below; and the judgment must be reversed, and the cause remanded.