Crockett v. Lide

SOMERYILLE, J. — The only question raised involves the right of the husband to transfer the rmts of the wife’s equitable separate estate, without her express consent, and by way of anticipation before such rents are actually due and payable. The note sued on was given for the rent of the wife’s land for the year 1880., being made payable to the husband, on the first day of November of that year. He transferred the note to the'plaintiff, for value, without the knowledge or consent of the wife. He died in June of the same year, before the note became due; and, upon the claim of the widow, the tenant paid the rent in controversy to her, refusing to recognize the validity of the transfer. This payment is set up as a defense in the present action on the rent-note,-and was sustained by the court below. ' If the consideration of the note had been the rents of the wife’s statutory separate estate, and it had been due, so as to sever it from the reversion, it may be that a recovery might be had, under the previous decisions of this court.— Westmoreland v. Foster, 60 Ala. 448; Lee v. Tannenbaum, 62 Ala. 501. This, however, is not the question, as the rights and authority of the husband, in respect to these two classes of separate estates, are entirely different. Where no other trustee is named in the instrument creating an equitable separate estate to the wife’s sole’ and separate use, the law appoints the husband as such trustee; and the legal title of the property vests in him, in all cases, where he reduces it to possession, so that he alone must sue for its recovery at law. — Pickens v. Oliver, 29 Ala. 528; Friend v. Oliver, 27 Ala. 532; McCall v. Jones, 72 Ala. 368. Helias no interest in such property in his own right, or other than as trustee.' — 2 Kent’s Com. 162. It can not be subjected to the payment of his debts by his creditors, without the consent of [305] tbe wife. — Calhoun v. Cozens, 3 Ala. 498; Flanagan v. State Bank, 32 Ala. 508. If, by the wife’s consent, he undertakes to control and manage the property, he does so in his capacity as trustee, and it his duty to collect and preserve the income and profits. — 1 Bish. Marr. Women, § 801. He is not permitted to usurp her right of dominion or management, however, without her acquiescence. — Roper v. Roper, 29 Ala. 247. If he appropriated such rents or profits to his own uses, he, or his personal representative, can be held to account to the wife for them, provided she satisfactorily prove her dissent from, or objection to such appropriation. — Allen v. Terry, 73 Ala. 123. If he collects such rents or income, he may, like any other trustee, be ordered by a court of equity to pay the proceeds over to the wife, unless it can be inferred that the wife has precluded her rights by a donation of them to him. — Collins v. Collins, 2 Paige, 9. The wife, in other words, is the owner of the rents and income of her equitable separate estate, just as fully as of the 'corpus of such property, and she has the same power of dominion over them. She may deal with such property as a femme sole, possessing the unquestionable authority to charge, transfer, mortgage or convey it without the husband’s concurrence. — Short v. Battle, 52 Ala. 456. She may, however, make a gift of her separate estate to her husband, just as she may to any other person, the courts always exercising a proper watchfulness over such transactions, based upon the apprehension and frequent danger of undue influence. So far as concerns the income and profits, the rule is settled in this State, as elsewhere, that if the husband reduces them to possession, and uses or converts them to his own use, during the continuance of coverture, and while he continues to reside with the wife, it will be presumed, after the lapse of a reasonable time, and in the absence of express dissent on her part, to have been with her consent, and will be regarded as a gift to him. — Roper v. Roper, 29 Ala. 247; Gordon, Rankin & Co. v. Tweedy, 71 Ala. 202; Hill on Trustees, 425-6. This is quite as far as the authorities seem to have carried the principle. It is obvious that there can be no gift from one person to another, without the mutual consent and concurrent will of both parties. The donor must intend to part with the dominion as- well as the possession of the thing donated. The above rule of law is one merely of presumptive evidence. If the rents or income of the wife’s equitable separate estate, as such, be collected in money or property, and be converted by the husband after coming into his possession, there prevails a presumption of the wife’s consent; and if she fails to dissent from such appropriation within a reasonable time, her silence [306] will be construed into a ratification of the conversion, and this wiil constitute a gift. The policy of the rule is to preserve domestic peace and promote domestic harmony in the marital relationship. The rent-note in controversy is shown to have been taken payable to the husband of Mrs. Temple, but no inference of a gift to him by her can be properly drawn from this fact, even if the wife had knowledge pf it, 'which is not proved. The note was not the rent itself, but only a written promise to pay it. It was no breach of trust that the husband should have taken it payable to himself. This he must be presumed to have done as trustee or agent of the wife, being fully authorized by law, in this capacity, to manage the wife’s separate estate by her consent and acquiescence. — 1 Whart. Contr. § 85; 1 Bish. Marr. Women, § 801. It is shown, also, that the wife was ignorant of the fact that the note had been transferred by her husband to the plaintiff, until after the husband’s death. Nor is there any evidence showing her ratification of, or consent to such transfer. .In view of her ignorance, therefore, it can not be maintained with a'ny show of reason that there was a gift of the note. She had no reason to apprehend that he had transferred it, or otherwise converted it to his own use. -Hence no room remains for any inference of a donation, based upon consent, express or implied. In view of these principles, -the plaintiff, under the evidence set out in the bill of exceptions, was not'entitled to recover. The court erred in refusing the third charge requested by the appellant. The other rulings we need not consider. Reversed and remanded.