Harper v. Rudd

McCLELLAN, J. This is an action in trespass prosecuted by a married woman, for the wrongful taking of certain chattels — and, among other things, a mule — which are alleged to have belonged to the corpus of her statutory separate estate. The assignments of error involve only questions relating to the said mule. It seems that the plaintiff, a good many years ago, owned a horse. Commencing with this horse, her husband made from time to time as many as five exchanges, in the last of which, from nine to twelve years since, he received this mule. In none of these transactions was any paper evidence of title given or received by the plaintiff, or her husband. On this state of facts, the title to the mule was never in the plaintiff.—Pollak v. Graves, 72 Ala. 347; Kennon Bros. v. Dibble, 75 Ala. 351; Meyer Bros. v. Cook, 85 Ala. 417. It is insisted, however, that the title was perfected in the wife by more than six years adverse possession on her part, as against her husband. The position is wholly untenable. Under the statutes of this State, of force nearly the entire period relied on to ripen possession into title, as well as under the common law, the husband was entitled to the possession of the wife’s chattels. His possession was hers, and vice versa-, or rather, the possession as between them was an unity. Whatever may be the true rule, under the act of Fébruary 28,1886, in this regard, it is certain that, prior thereto, adverse possession could not exist between husband and wife, while the marital relation continued.—First National Bank v. Guerra, 61 Cal. 169; Mauldin v. Cox, 7 Pac. Rep. 804; [373] Hendricks v. Rosson, 53 Mich. 575; Bell v. Bell's Adm'r, 37 Ala. 536. The legal title being, therefore, in the husband of the plaintiff, the possession of the chattel in December, 1887, when the alleged trespass was committed, will be referred to the title, and held to be in him, despite the concession that, under the statute then of force, the wife might have a possession with her husband.—Scruggs v. Decatur M. & L. Co., 86 Ala. 173. Neither the possession, nor the legal title coupled with a right to immediate possession, being in the plaintiff when the cause of action accrued, she can not maintain this action. Dunlap v. Vandergrift, 80 Ala. 424. Several of the rulings of the trial court, to which exceptions were reserved, are not in harmony with the View we have taken of the law applicable to the facts. The judgment below is, therefore, reversed, and' the cause remanded.