High v. Whitfield

HARALSON, J. The controlling question 'in the case is, whether the lease of the lands mentioned in the bill, by G. J. Davis, in the name of Mrs. Morphew, under the power from her to him, executed without the consent and concurrence of her husband expressed in writing, was a valid conveyance by lease of said lands or not. At the time of the execution of said lease, section 2346 of the Code of 1886 was of force, which provided, that “the wife has full legal capacity to contract in writing as if she were sole, with the assent and concurrence of her husband expressed in writing,” but by section 2348 of that Code, it was provided, — as now by section 2528 of the Code of 1896, — that “the wife, if. the husband be of sound mind, and has not abandoned her, or be not a non-resident of the State, or be not imprisoned under a conviction for crime for a period exceeding two years, [448] cannot alienate her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed for the execution of conveyances of land.” This was an absolute inhibition on the wife’s power to alienate her lands, or any interest in them, if one of the alternate conditions as to the husband, as specified, did not exist; but, if either of these specific conditions did exist, the wife was empowered to alienate her lands, as if she were sole. None of these conditions have any application to this case, except the one as to the non-residence of the husband. The bill shows, that the wife, Mrs. Morphew, owned the lands in question; that she and her husband lived together as husband and wife, in the State of Arkansas, at the time she executed said power of attorney, and the lease under it, and that her husband did not join in the execution of said power, nor in the lease executed by the attorney in fact to said Tune and Scott, under whom defendants claim. It is insisted for complainant that the exception of the non-residence of the husband, applies only to cases where the wife is a resident and the husband is a nonresident of the State. On the other hand, the construction is urged and relied on, that if both the husband and wife are non-residents of this State, as in the present case, the wife may alienate her lands, as if she were sole. It is a settled general rule, that a woman acquires, at marriage, the domicile of her husband, and her domicile continues to be the same as his, and changes with his, throughout the marriage. An exception to this rule prevails, as is held, to the extent, that the Avife must be alloAved, for the purpose of obtaining a divorce, to acquire a separate domicile in the State in Avhich she is actually living >at the time she is deserted by her husband.—Hanberry v. Hanberry, 29 Ala. 719; 5 Am. & Eng. Encyc. Law (1st ed.), 868. [449] Construing said section 2848 of the Code of 1886 (section 2528 of Code of 1896) by its language, it appears to make no exception as to the residence of the Avife. It deals only Avith the non-residence of the husband. Without importing, by 'Construction, into the statute other words than 'those it contains, which Ave do not feel authorized to do, it seems to us, that it must be construed by its very terms, by which the wife, Avithout reference to her residence in this or in another State, may alienate her lands if her husband is a nonresident of Alabama. This ' construction meets, precisely, the condition of the Aidfe and her husband, at the date of the execution of said power by the Aidfe to said G. J. DaAds, and of the execution by him of said lease contract- in her name, to said Tune and Scott, under AAdiom defendants claim. Under these instruments, the grantees in said lease acquired a good title to Avbat Avas comreyed thereunder. They Avere of record in the probate office of Walker county, long before the complainant acquired his deed to said lands from Mrs. Mor-phew and her husband, and he had constructive notice of the same. The said lease contract 'conveyed to the grantees therein, not only all the coal under the lands described, but, also, during the term of the lease, — 18 years from its date, — the right of Avar on the surface of said lands for the purpose of building or making railroads or Avagon roads, and to all the timber and water necessary to successfully mine and remoA'e 'said coal. The complaint is made, that defendants are hauling their coal AA’hen mined, over lands of complainant adjoining the lands covered by said lease, and prays that defendants be enjoined from so doing. If this is true, the complainant Avould have no right, on this ground, alone, to maintain the bill to prevent such a trespass. The law furnisher him an adequate remedy for such a grievance. It folloAVS, the injunction Avas improperly perpetuated. The decree beloAv Avill be reversed, and one Avill be here rendered dissolving the injunction and dismissing the bill. Reversed and rendered.