Kennon & Brother v. Dibble

STONE, J. The circuit court, at the written request of claimant, instructed the jury that if they believed the evidence, they must find for the claimant. The claimant, in such a suit as this, stands in the attitude of a defendant; and the substance of this ruling was, that the plaintiffs had failed to make a case entitling them to recover.' The claimant went hence without day, under this ruling; for it left no ground for a partial recovery, if the testimony was believed. Such charge was improper, if plaintiffs were entitled to have any part of the property condemned ; for in that event the jury could not find for the claimant. All the testimony tends to show that the Jersey bull and the wagon, though purchased by the husband, were paid for with moneys that were of the corpus of the wife’s statutory separate estate; the proceeds of the sale of her house and lot. The statute expressly authorizes such investment by the husband, and declares that property thus purchased becomes the separate estate of the wife. — Code of 1876, § 2709. The testimony, if believed, entitled the claimant to these two chattels. The corn and fodder, according to the evidence, were grown on lands which were the statutory estate of the wife. They were income or profits, not corpus. They vested in the husband as trustee, who was not liable to,account for them, but they were not subject to the payment of his debts. — Code, § 2706. This is a statutory inhibition, and we feel bound to give effect to it. True, as a general rule, “ when it is shown that at the time of the levy the defendant had possession of the property, a presumption of ownership arises. The presumption [generally] 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.”—Pollak v. Graves, 72 Ala. 347. The statute makes this an exception to that rule, if indeed the [355] wife has not such an interest in the trust, as to take it without the operation of the rule. The corn and fodder should not have been condemned to the attachment. The remaining chattels rest on different principles. The larger mare was purchased with money, and there is no pretense for saying that the money was the property of Mrs. Dibble. The husband himself borrowed it from bank, and with it purchased and paid for the mare. True, when he borrowed the money, he pledged as security for its repayment a watch and chain, which were of the statutory estate of his wife. But this did not have the effect of making either the money or the mare her property. The watch and chain were still hers, notwithstanding their unauthorized pledge by her husband, and, according to our laws, she could have recovered them back, without payment or tender of the debt.—Whitman v. Abernathy, 33 Ala. 154. When the husband afterwards paid the debt to the bank with his wife’s money, the corpus of her estate, and thus redeemed her watch, it is probable this armed her with an equity to trace her money into the mare; which equity would prevail over the claim of the husband, and of any one else, except bona fide purchasers and creditors without notice.—Preston v. McMillan, 58 Ala. 84. Mrs. Dibble can not maintain her claim to the larger mare in the present proceeding. The case of the smaller mare, for which the husband exchanged the wife’s diamond ring, falls precisely within the principle declared in Evans v. English, 61 Ala. 416, reaffirmed in Pollak v. Graves, 72 Ala. 347. Those decisions have doubtless become rules of property, and we are unwilling to overturn them. If the question were an open one, possibly it would be the better policy to let such exchanges stand as a change of property, unless the wife herself should seek to disaffirm the contract. It often happens that market commodities, and articles of small value, are of the eorpus of the wife’s statutory estate. These it may be desirable to sell or exchange. It entails, exceeding trouble and annoyance to require in all such cases the written conveyance of husband and wife, attested by two witnesses, or acknowledged before some officer, authorized to take acknowledgments of conveyances. — Code of 1876, §§ 2707-8. But these are questions for the legislature. The. wife’s claim to the smaller mare, under our rulings above, can not prevail. Reversed and remanded.