Washburn v. Gardner's Adm'r

STONE, C. J. — In Powe v. McLeod & Co., at the present term {ante, p. 118), a principle was declared, which is fatal to the right of recovery in this action. We ruled, that a deed to lands, made directly from husband to wife, 'did not clothe her with a legal title, either during the husband’s life, or after his death. In this we only followed one of the principles declared in McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67, and Goodlett v. Hansell, 66 Ala. 151. A second principle declared in the last three cases above is, that property thus conveyed becomes the equitable separate estate of the wife, which she can fasten a charge upon by any promise, or contract of hers to pay money; in other words, that it has all the incidents of property secured to her sole, separate, or exclusive use. If this were an open question in this court, we think much might be said against its correctness. We do not gainsay the fact, that property conveyed by a husband directly to his wife fails to vest the legal title in her. It does not devest the' legal title out of the husband. The problem is, what is the status of property thus conveyed and held ? The conveyance is inoperative at law ; and does it not follow, that in any relief which a law court can administer, the property is that of the husband, unaffected by his abortive attempt to devest the title out of himself ? And has the wife any interest in, or right to the property, other than the equitable right to invoke the powers of the Chancery Court to perfect that which the husband, by force of the relation he sustained to his wife, was incompetent to do ? And is this mere equitable right of the wife the equivalent of an estate secured to her sole and separate use ? Possibly, this has become a rule of property, which it would be unwise to disturb. In that event, the proper remedy would be with the legislature; not with us. We do not, however, hold ourselves concluded from re-examining the principle asserted in the seventh headnote of Goodlett v. Hansell, supra, should the question come again before ns. Without intending to decide the question second above mooted, we are satisfied that neither Mrs. Gardner, nor her personal representative, was clothed with the legal title to the land sued for. Reversed and remanded. Clopton, J., not sitting.