Gilkey v. Pollock Co.

CLOPTON, J. - A material question .is, whether the profits and income of Mrs. Gilkey’s separate estate, as created by the statutes of Mississippi, which were received and appropriated to his own use by her husband, before and after their removal with the estate to this State, constitute a consideration sufficient to uphold, against his existing creditors, a conveyance of his property in payment therefor. Mississippi was the matrimonial domicil; and under the laws, Mrs. Gilkey had a separate estate, consisting of real and personal property, which was converted into money in the latter part of 1871; and she and her husband removed to this State, bringing the money, and investing it here. It will not be contended, that the mere acts of change of domicil and removal of the property converted it into an estate other than such as is created by the statutes, either of Mississippi or of this State. Therefore, whether,' after removal, the status and ownership of the separate estate be regarded as still impressed by the laws of the matrimonial domicil, or the money be regarded as a new acquisition coming under the operation of the laws of the actuál domicil, is an immaterial question, when the effect and' operation of the laws of both States are considered. The statutes of Mississippi have been held to be enabling, and that the wife’s power of disposition, or to charge or bind her separate property, or to incur debts to be satisfied out of it, is defined and limited by the statutes.— Viver v. Scruggs, 49 Miss. 705; Nicholson v. Heiderhoff, 50 Miss. 56. They do not create an equitable separate estate, such as equity creates independently of statute, with all its powers, rights, and incidents. The established rule of comity requires, that when transactions had under foreign laws, before change of domicil or removal of property, are brought before our courts, full effect in.respect to their validity and legality, and the rights and liabilities of the parties, shall be,given to such laws, so far as they do not contravene the positive láw, or violate the public policy of this State, [509] Castleman v. Jeffries, 60 Ala. 380. The obligation of the husband to pay Mrs. Gilkey the income and profits received and appropriated while domiciled in Mississippi, is determinable by the laws of that State. But the rule of comity does not extend to the disposition or alienation of the property, or to the wife’s power to bind it, or to contract; and as the income and profits accruing after change of domicil are new acquisitions, the liability of the husband for such profits will be governed by the laws of this State. Castleman v. Jeffries, supra; Story’s Conf. Laws, § 383. Under the' statutes of neither State was the husband under a legal liability for the income and profits, when the conveyance was made. By our statutes, he is expressly exempted from accountability; and by the Mississippi statutes, the liability only extends to the receipts for the last year next before he is called to account; and more than ten years had expired. — Thompson v. Hester, 55 Miss. 656. The evidence is not sufficient to show an effective renunciation of the marital right to receive the income and profits. The conveyance is invalid, as to existing creditors, to the extent of the profits and interest which entered into its consideration : but, as the chancellor found that Mrs. Gilkey did not have a fraudulent intent, and did not participate in any fraud of her husband, it will be allowed to stand as security for the amount really and justly due. — Early v. Owens, 68 Ala. 171; Thompson v. Hester, supra. The decree of the chancellor is in harmony with this view. The decree, however, directs the register to deduct from the corpus received by the husband in Mississippi the sums expended by him for the expenses of the farm and family, and to report the amount expended by him out of the corpus after it was brought into this State. The statutes of Misisssippi make binding on the separate estate of the wife all contracts made by her and her husband, or by either of them, for supplies for her plantation, and for family expenses. The provisions of the statutes are in favor of the creditor, who may have satisfaction out of the separate property, on failure of the husband and wife to pay for the supplies furnished. It could not have been intended to make the estate liable to reimburse the husband’s payments for supplies made by him. It is his primary and legal duty to support his family, notwithstanding bis wife may have a separate estate. He is authorized to receive the income and profits, to supplement his want of ability; to which purpose it is his moral duty to appropriate them; and in the absence of proof to the ¿ontrary, the law presumes that he has so appropriated them. If he is without ability, and the income [510] and profits are insufficient, it maybe that, under the statutes of Mississippi, he would have an equity to be relieved from liability to his wife for the corpus necessarily so expended. But, if the expenses were actually paid out of the income and profits, or they were sufficient for the purpose, and were otherwise appropriated by the husband, the amount of the expenses -should not be deducted from the amount of the corpus of her separate estate received and misappropriated by him. — Rogers v. Boyd, 33 Ala. 175. ■ The chancellor having stated in his opinion the basis on which the amount due' Mrs. Gilkey may be ascertained, and as the register may regard this in the nature of directions in taking the- reference, it is proper, in order to a correct' accounting, to refer to the general rules, by which it may be ascertained what constitutes the corpus of the separate estate. . The evidence satisfies us that the husband was without - means, and that the money put in as part of the capital- of the several mercantile firms was the separate estate-- of Mrs. Gilkey. While, in Wilder v. Abernathy, 54 Ala. 644, it was held, on account of the incapacity of the wife to acquire property by purchases on credit, that when the husband carries on a mercantile business in the name of the wife,-goods purchased on credit do not become part of her statutory separate estate ; the' investment of moneys belonging to her separate estate in such business, with which goods are purchased, raises a different question as between her and her husband, there being no existing creditors of the husband complaining. In such case, when the business is carried on by a partnership of which she is a member, though goods may be subsequently purchased on credit, her proportion of the profits arising from the business may be regarded as the profits of her separate estate. Such investment, though the business may be superintended and managed by the husband, does not operate to divest its character as separate property, and convert it into the property of the- husband. • If the husband, having no existing creditors to be prejudiced thereby, permits the wife to invest the income and profits, which he- had not previously converted, in her name, and for her use, such acquired property becomes a part' of the- accumulated corpus of her separate estate.— Wing v. Roswald, 74 Ala. 346; Early v. Owens, supra. The evidence tends to show, that a large part of the profits of the mercantile business was invested in the purchase of real estate, the title of which was taken in her name, and in the name of Sprowl, the other partner. If this be-true, and the title was so -taken- for her by permission of her husband,- -her in [511] terest, under the rule above stated, became a part of the corpus of her separate estate; and if, on the settlement between them, Sprowl agreed to take her interest in such lands, paying her therefor in goods, or giving her an obligation for money, or both, such goods and obligation stand in stead of the lands, impressed with the status of her separate estate. "We do not mean, however, that this rule is applicable to the Shackelford land, the title to which was taken in the name of her husband, and was not divested. The evidence does not satisfy us that it was intended by the husband that the title, should be taken in her name, when he could have executed a deed at any time vesting the title in her, and suffered more than a year to pass, and the partnership to cease, without having done so. The inquiries of the register should have been directed to the ascertainment, not merely of the' amount of the separate property brought into this State, but also what investments of the profits were subsequently made in the name of Mrs. Gilkey, and for her use; and what portion of the corpus, as thus accumulated, was' appropriated by the husband to his own use. Such investment, once made, is beyond the husband’s power of revocation; and not having been converted by him, belongs to the wife, and is' not subject to his subsequent debts, there being no intent to defraud creditors. As to the new firm organized in December, 1878, in which the name1 of'the husband appears as a partner, the evidence does not show any investments of the profits in other property. But it may be remarked, that Mrs. Gilkey is entitled to be repaid, to the amount of the corpus of her separate estate invested in the preceding firms, which constituted a part of the .capita,! of the succeeding firm ; but, so far as the profits of the previous business, not having been invested in other property, in the name and for the benefit of the wife, were carried into the new business, they should be regarded as received and invested by the husband for his own use. . , These suggestions will probably suffice for the ascertainment of the amount really and justly due to Mrs. Gilkey. Of course, from the amount ascertained wdll be deducted, any payments arising from collections of the choses in ac^-, tion, and from the property conveyed, or otherwise. We do not undertake tp deter ¿nine the facts, which can be more satisfactorily done by the register under proper directions from the chancellor. , Beversed and remanded.