Birmingham Water Works Co. v. Hume

SHARPE, J. — As between the husband and the wife their rights in personal property coming to the wife attach under and are governed by the law of the place where they are domiciled at the time the property is received,—McAnally v. O’Neal, 56 Ala. 299; Gluck v. Cox, 75 Ala. 310; 3 Am. & Eng: Ency. Law, 575. The rule-is established here that when the contrary is not shown, it will be presumed that the common law prevails in States which are judicially known to be of common origin with this State.—Inge v. Murphy, 10 Ala. 885; Connor v. Trawick’s Admr., 37 Ala. 289; Bradley v. Harden, Admr., 73 Ala. 70; 1 Brick. Dig., p. 349, § 9. The case of Kennebrew v. Southern, etc., Co., 106 Ala., cited as being opposed to this rule, was ruled with express reference to the peculiar legal system of Louisiana, and is not in conflict with the rule stated. • Tennessee having an origin common with that of the older States, and nothing appearing in the bill to destroy ■the presumption of the reign there of common law, we must apply it in determining this case. By the common law the husband was entitled during coverture to receive and to reduce to his possession and ownership all chosés in action belonging to the wife at the time of marriage, or which may accrue to her while the coverture continues. As to what acts of the husband will amount to such reduction to his possession no rule [171] has been declared which will apply with precision to the varied transactions of that nature. That the husband may during the coverture in the assertion of his marital rights and for a valuable consideration assign the choses in action of the wife which are capable of being immediately reduced to possession so as to vest at least the beneficial ownership in the purchaser, the authorities are •generally agreed. — 2 Kent’s Com., 137-139 and notes; Clancy on Husband and Wife, 150; Schuyler v. Hoyle, 5 Johns. Ch., 196; Needles v. Needles, 7 Ohio St., 432; Chaplinger v. Sullivan, 37 Am. Dec., 575, and cases collected in note; Siter’s Appeal, 4 Rawle, 467; McConnell v. Wenrich, 16 Penn. St., 365; Webb’s Appeal, 21 Penn. St., 248; Rice v. McReynolds, 8 Lea, 36; George v. Goldsby, 23 Ala. 326. Shares in the capital stock of a business corporation cannot be reduced to possession by collection as in the case of monied contracts, but representing as they do intangible interests in the property of the corporation they are classed as choses in action and when belonging to the wife are subject to the husband’s common law power of appropriation, and this power he may exercise by assigning the shares for value.-Cummings v. Cummings, 146 Mass., 501; Rice v. McReynolds, supra. The last named case is confirmatory of the presumption that as to such right of the husband the common law rule was prevailing in Tennessee when these transactions were had. Whether the pledge of Mrs. Johnson’s stock in 1895 amounted to a reduction to the possession of her husband may become a question of fact depending largely upon whether his intention was' to thereby finally appropriate the stock as his own. The bill avers substantially that such was his purpose and its sufficiency in that- respect is not challenged by demurrer. No concurrence or act of transfer on the part of Mrs. Johnson was needed to perfect her husband’s common law right and power of appropriation. The transaction being in Tennessee the statutes of Alabama relating to the disposition of the wifé’s property are without application to this casé. The decree of the chancery court will be affirmed at appellants’ cost. Affirmed.