Parker v. Wimberly

CLOPTON, J. The power of disposition conferred on a married woman, as to her statutory separate estate, is limited by the statute, and restricted to the specific mode prescribed. She can not divest herself of title to property, real or .personal, things in possession or in action, her statutory separate estate, [66] except by an instrument in writing, attested or acknowledged, whether a sale or exchange is intended. The statute makes no distinction in respect to the kind or species of property. Neither can she mortgage or sell her separate estate, to secure, or in payment of her husband’s debts ; and husband and wife can not contract with each other, for the sale of any property. Code, §§ 2707, 2709 ; Williams v. Bass, 57 Ala. 487; Boyleston v. Farrior, 64 Ala. 574 ; Simms v. Kelly, 70 Ala. 429. Érom the agreed statement of facts it appears, that the claimant delivered to the mortgagee a bale of cotton, which was her statutory separate estate, and which was accepted by him, at a stipulated price, in payment or satisfaction or her husband’s debt secured by the mortgage. No instrument in writing was executed by the husband and wife. There was no agreement between the mortgagee and the claimant for the sale of the horse, or its exchange for the mortgage. The agreement that the horse should be the claimant’s, in consideration of her payment of the mortgage debt, was between her and her husband. The transaction did hot operate to divest her title to the cotton, nor to vest in her title to the \\6y&& — Pollak v. Graves, 72 Ala. 347; Woods v. Dunlap, 73 Ala. 169. The record does not present the case of a conveyance of property by the husband to the wife, in payment of a debt he owed her, nor of the investment of her money in the purchase of property. In a trial of the right of property, like this, the claimant must recover on the strength of her title. When the plaintiff shows aprima facie case, the onus is cast on the claimant to establish a legal title in herself — such title as would enable her to maintain trespass, trover, or detinue. — Shahan v. Herzberg, 73 Ala. 59; Frow v. Downman, 11 Ala. 880. It may be that the claimant has an election, to reclaim the cotton, or to ratify the payment, and be subrogated to the rights of the mortgagee; but, if she elects the latter, it can be enforced in a court of equity only ; a court of law can hot take cognizance of it. The judgment rendered by the Circuit Court is improper. The plaintiff does not recover the property. On the verdict-of the jury finding the issue in favor of the plaintiff, a judgment of condemnation should be rendered ; that is, that the property is subject to the plaintiff’s execution. No judgment should have been rendered for the assessed value. By the statute, the claim bond, when indorsed forfeited by the sheriff, has the force and effect of a judgment, and execution must be issued against all the obligors therein, for the amount of the judgment of the plaintiff, or the assessed value of the property, as the case may be. — Code, § 3344; Seamans v. White, 8 Ala. 656; Wallis v. Rhea, 10 Ala. 451. As the judgment is [67] amendable in the court below, it is our duty, under the statute, to make the amendment; and it is so ordered at the costs of the appellant. Judgment corrected, and affirmed.