Askew v. Renfroe

SOMERVILLE, J. — The title of the plaintiff to the lands in controversy depends on the validity of the sheriff’s sale of the same lands made in February, 1884, under several executions for costs issued against the plaintiff, who was a married woman. These costs were incurred in suits brought by the plaintiff, Mrs. Mary Renfroe, for the corpus of her statutory separate estate. The question thus presented is, whether an execution for costs can issue against a married woman personally in suits brought by her in a court of law touching the corpus of her separate estate under the statute, and whether a sale of her property under such execution is valid. If the plaintiff had been sui juris, it is not denied that the executions would have been fully authorized by the statute, or that the judgments upon which they were issued would not have been valid and regular. — Code, 1876, §§ 3128, 5014. Nor is there any statute which expressly takes married women out of the operation of the general rule allowing plaintiffs to be taxed with costs of suit in certain cases. The question is, whether we are authorized to except them by implication because of coverture. We have recently decided that property belonging to the statutory separate estate of a married woman was not subject to levy and sale under an execution issued on a judgment rendered against her, during coverture, in a court of law, and founded on a personal contract which she was incompetent to make. — Callen v. Rottenberry, 76 Ala. 169. The contract in that case, upon which the judgment rested, was one which the defendant had no power to make by reason of her coverture, and the claim'was not shown to be one of that class for the satisfaction of which a married woman’s statutory separate estate is made liable by law. Where the statute, however, expressly or by necessary implication, confers on a married woman the power to incur a pecuniary obligation, and clothes her with the attributes of a feme sole [362] as to such contract, a different rule has been held to prevail. In Parker v. Roswald & Stoll, 78 Ala. 526, we on this ground sustained a personal judgment against a married woman, whose disabilities of coverture had been removed so as to authorize her to incur the obligation upon which the particular suit had been brought. A like rule has been declared in other States.— Willard v. Eastham, 15 Gray, 328 ; Patrick v. Littrell, 36 Ohio St. 79. Our statute provides that where a suit is brought by a married woman, in a court of law, for the corpus of her statutory separate estate, she must sue alone. — Code, 1876, § 2892; Pickens v. Oliver, 29 Ala. 528. Her husband is thus prohibited to be joined with her, at least in a court of law. The power to sue alone is conferred on her, and this, in our judgment, authorizes her to incur a personal liability for the costs which lawfully accrue in such suit relating to her statutory separate estate. This is a necessary inference, unless we conclude it was intended to give her the benefits of litigation without its burdens. The power to sue alone, without either her husband or a next friend, includes, by implication, the power to incur the incidental obligations cast by law on others who sue alone, and are taxed with the reasonable liabilities of suit. We have often said, that the married woman’s laws of this State must be construed as far as possible to be a shield for those laboring under the disabilities of coverture, rather than a sword for the injury of others. The case of Haney v. Lundie, 58 Ala. 100, is distinguishable from the present one. That was a suit in chancery, and the statute requiring married women to sue alone, when the suit relates to their statutory separate estate, has been held not to apply to suits in equity. — Skinner v. Chapman, 78 Ala. 376; Sawyers v. Baker, 72 Ala. 49. Courts of equity, moreover, have the power, as was done in that case, to condemn a litigant’s property in suit to the satisfaction of costs, without taxing them against the party personally. The powers of a court of law are inadequate to do this. We must hold, in this case, either that the legislature intended to authorize married women to enter the courts ad libitum without paying any costs, whatever their wealth or affluence, or else that, in cases like the present, they become personally liable like other litigant plaintiffs who are sui juris. We prefer the latter as the sounder view, and accordingly adopt it as the one probably intended by the law making power. The ruling of the Circuit Court was opposed to this con [363] elusion, and was erroneous. The judgment is accordingly reversed and the cause remanded.