A. J. WALKER, O. J.
The title to the property in controversy, at a date anterior to the adoption of any of our statutes concerning the separate estates of married women, is the subject of inquiry. Those statutes are, therefore, excluded from view in the discussion of the questions of this case.
It is a general rule of law, that the wife’s possession of chattels is the husband’s possession, and that the husband’s property in the wife’s chattels springs into existence with the commencement of her possession during the coverture, as if the manucaption had been his instead of hers. Clancy, in his work on Husband and Wife, states, that, as a general rule, the wife cannot possess personal property'; that, as far back as English jurisprudence could be traced, marriage conferred on the husband dominion over the possession of the wife; that, in the contemplation of law, the wife is scarcely considered to have a separate existence; that the unity of the persons of husband and wife is the source whence the wife’s disability to possess personal property is derived, and that the [474]*474husband takes the wife’s chattels, which come into the wife’s possession in her own right, whether it be by gift, or bequest, or in any other way. — Clancy on Husband and Wife, 1-2-3. And it lias been decided by this court, that because the legal existence of the wife is merged in that of her husband, a delivery to the wife is a delivery to the husband, and the possession of the wife is the possession of the husband. — Machem v. Machem, 15 Ala. 373; McDaniel v. Whitman, 16 Ala. 348; Mason v. McNeill, 23 Ala. 201, 214-217; Walker v. Fenner, 28 Ala. 367; Magee v. Toland, 8 Porter, 36-42. There are dodisions, which .distinguish the effect of the wife’s constructive possession, as implied from the holding of another for her, as her guardian, bailee, .and the like, in the cases where the wife survives, from its effect when the husband survives. But such distinction does not belong to cases whore the wife bad actual possession, and it lias never been made in such eases. A consideration of the cases making that distinction would, therefore, be altogether out of place in this case.
The marriage-tie between George. W. Bell and Lucy Bell wan subsisting when the latter went into the actual possession of the slave Linda; and by virtue of that pos ■ session, upon the principle hereinabove stated, the husband became the owner of the slave, unless something in the relation and attitude of the husband and wife towards each other, or in the conduct of the husband', excepts the case from the operation of the general rule. The first charge given by the court below is predicated upon the supposition, that an exclusion of the marital rights results, and an exception to the general rule prevails, when the husband, longbefore the wife’s possession, lived apart, and in-complete estrangement from his wife and handy, in an adulterous connection, and so continued to live until his death many years afterwards, and never had or claimed possession of the property, and intended never to cb.dm it, but intended that his wife should hold and enjoy it as her separate estate. The conclusion expressed in idie charge is put upon the finding of two distinct matters, which seem to derive no force from their union, [475]*475and presents these two points of investigation — what is the effect of the husband’s separation from Ms wife, and Ms adultery? and what is the effect of his, intentional leaving of the property to the exclusive enjoyment and control of his wife, separated from him, coupled with the intention that she should have a separate estate in it ?
"What would be the effect of the husband’s separation from his wife and his adultery, if accompanied by a permanent abandonment of the State, is not the question,to be decided. The abandonment of the State is not within the hypothesis of the charge, and, indeed, is not shown by the evidence. In the cases which concede to the wife, who has been deserted by her husband, the privileges of contracting and suing as a feme sole, the husband had either permanently abandoned the State, or had been banished, or had never resided in the State; and they are expressly put upou the grouud of the husband’s non-residence. — Arthur & Corprew v. Broadnax, 3 Ala. 557; James v. Stewart & Rainey, 9 ib. 855; Mead v. Hughes, 15 ib. 139; Krebs v. O’Grady, 23 ib. 726 ; Roland v. Logan, 18 ib. 307; Gregory v. Pierce, 4 Metc. 478; Abbot v. Bailey, 6 Pick. 89; Gregory v. Paul, 15 Mass. 31; Smith v. Silence, 4 Iowa, 321. The principle of these cases is, that to relieve the wife of the disabilities of coverture, and to free her from the operation of the common-law doctrine of the merger of her legal existence in that of her husband, which controls almost every question of marital right and obligation, there must be something deemed analogous to an abjuration of the realm. Those cases give no sanction to the proposition, that desertion, cruelty, adultery, or any other like cause, can, of itself, deprive the husband of his rights, or reinvest the wife with the powers of a feme sole.
Qur decisions have infringed, to some extent, the rigid rule of the common law, that to invest the wife with the capacity of a feme sole, there must be a banishment of the husband, or an abandonment of the country for life without the privilege of returning, or transportation for a certain number of years; but this court bas evidenced no inclination to depart from the common-law rule farther [476]*476than is above indicated. — See the cases above cited; also Clancy on H. & W. book 1, ch. 4, p. 54; 2 Bright on H. & W. 69-70; Bell on H. & W. 34-35.
In Massachusetts it has been decided, that the wife was not reinvested with the privileges of a feme sole, when her husband lived apart from her, in another town, in adultery, and she carried on trade on her own account. Russell v. Brooks, 7 Pick. 65. In the case of Altemus, (1 Ash. 49,) it was held in Pennsylvania, that a husband was not deprived of the right of administration upon the estate of his deceased wife, on account of his cruel and barbarous treatment of her, and his abandonment of her many years before her death. In the case of Abbot v. Bayley, (6 Pick. 89,) where it was replied to the plea of coverture, that the husband had, about eighteen years before, driven the plaintiff from his bouse by cruel treatment, and bad since lived in adultery in one State, while the wife maintained herself in another, it was said, that if the parties had lived, in the same State, it was certain that the , facts stated in the replication would not have avoided the plea of coverture.
It is now well settled, both in England and America, that where husband and wife live apart by agreement, tbe wife has no right to sue and be sued as a feme sole, and the husband’s interest in ber property is not affected. 2 Kent’s Com. (m. pp.) 154 to 162; Ames v. Chew, 5 Metcalf, 320. In England, the doctrine is, that a divorce a mensa et thoro does not confer upon the wife a capacity to sue and he sued. — Lewis v. Lee, 3 B. & C. 291. And in Pennsylvania the same doctrine seems to have been held. Clark v. Clark, 6 Watts & Ser. 85. In Massachusetts, the capacity to sue and be sued is conceded to a woman divorced a mensa et th iro ; but it is put expressly upon the ground, that the separation is sanctioned by the law. Dean v. Richmond, 5. Pick. 461.
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A. J. WALKER, O. J.
The title to the property in controversy, at a date anterior to the adoption of any of our statutes concerning the separate estates of married women, is the subject of inquiry. Those statutes are, therefore, excluded from view in the discussion of the questions of this case.
It is a general rule of law, that the wife’s possession of chattels is the husband’s possession, and that the husband’s property in the wife’s chattels springs into existence with the commencement of her possession during the coverture, as if the manucaption had been his instead of hers. Clancy, in his work on Husband and Wife, states, that, as a general rule, the wife cannot possess personal property'; that, as far back as English jurisprudence could be traced, marriage conferred on the husband dominion over the possession of the wife; that, in the contemplation of law, the wife is scarcely considered to have a separate existence; that the unity of the persons of husband and wife is the source whence the wife’s disability to possess personal property is derived, and that the [474]*474husband takes the wife’s chattels, which come into the wife’s possession in her own right, whether it be by gift, or bequest, or in any other way. — Clancy on Husband and Wife, 1-2-3. And it lias been decided by this court, that because the legal existence of the wife is merged in that of her husband, a delivery to the wife is a delivery to the husband, and the possession of the wife is the possession of the husband. — Machem v. Machem, 15 Ala. 373; McDaniel v. Whitman, 16 Ala. 348; Mason v. McNeill, 23 Ala. 201, 214-217; Walker v. Fenner, 28 Ala. 367; Magee v. Toland, 8 Porter, 36-42. There are dodisions, which .distinguish the effect of the wife’s constructive possession, as implied from the holding of another for her, as her guardian, bailee, .and the like, in the cases where the wife survives, from its effect when the husband survives. But such distinction does not belong to cases whore the wife bad actual possession, and it lias never been made in such eases. A consideration of the cases making that distinction would, therefore, be altogether out of place in this case.
The marriage-tie between George. W. Bell and Lucy Bell wan subsisting when the latter went into the actual possession of the slave Linda; and by virtue of that pos ■ session, upon the principle hereinabove stated, the husband became the owner of the slave, unless something in the relation and attitude of the husband and wife towards each other, or in the conduct of the husband', excepts the case from the operation of the general rule. The first charge given by the court below is predicated upon the supposition, that an exclusion of the marital rights results, and an exception to the general rule prevails, when the husband, longbefore the wife’s possession, lived apart, and in-complete estrangement from his wife and handy, in an adulterous connection, and so continued to live until his death many years afterwards, and never had or claimed possession of the property, and intended never to cb.dm it, but intended that his wife should hold and enjoy it as her separate estate. The conclusion expressed in idie charge is put upon the finding of two distinct matters, which seem to derive no force from their union, [475]*475and presents these two points of investigation — what is the effect of the husband’s separation from Ms wife, and Ms adultery? and what is the effect of his, intentional leaving of the property to the exclusive enjoyment and control of his wife, separated from him, coupled with the intention that she should have a separate estate in it ?
"What would be the effect of the husband’s separation from his wife and his adultery, if accompanied by a permanent abandonment of the State, is not the question,to be decided. The abandonment of the State is not within the hypothesis of the charge, and, indeed, is not shown by the evidence. In the cases which concede to the wife, who has been deserted by her husband, the privileges of contracting and suing as a feme sole, the husband had either permanently abandoned the State, or had been banished, or had never resided in the State; and they are expressly put upou the grouud of the husband’s non-residence. — Arthur & Corprew v. Broadnax, 3 Ala. 557; James v. Stewart & Rainey, 9 ib. 855; Mead v. Hughes, 15 ib. 139; Krebs v. O’Grady, 23 ib. 726 ; Roland v. Logan, 18 ib. 307; Gregory v. Pierce, 4 Metc. 478; Abbot v. Bailey, 6 Pick. 89; Gregory v. Paul, 15 Mass. 31; Smith v. Silence, 4 Iowa, 321. The principle of these cases is, that to relieve the wife of the disabilities of coverture, and to free her from the operation of the common-law doctrine of the merger of her legal existence in that of her husband, which controls almost every question of marital right and obligation, there must be something deemed analogous to an abjuration of the realm. Those cases give no sanction to the proposition, that desertion, cruelty, adultery, or any other like cause, can, of itself, deprive the husband of his rights, or reinvest the wife with the powers of a feme sole.
Qur decisions have infringed, to some extent, the rigid rule of the common law, that to invest the wife with the capacity of a feme sole, there must be a banishment of the husband, or an abandonment of the country for life without the privilege of returning, or transportation for a certain number of years; but this court bas evidenced no inclination to depart from the common-law rule farther [476]*476than is above indicated. — See the cases above cited; also Clancy on H. & W. book 1, ch. 4, p. 54; 2 Bright on H. & W. 69-70; Bell on H. & W. 34-35.
In Massachusetts it has been decided, that the wife was not reinvested with the privileges of a feme sole, when her husband lived apart from her, in another town, in adultery, and she carried on trade on her own account. Russell v. Brooks, 7 Pick. 65. In the case of Altemus, (1 Ash. 49,) it was held in Pennsylvania, that a husband was not deprived of the right of administration upon the estate of his deceased wife, on account of his cruel and barbarous treatment of her, and his abandonment of her many years before her death. In the case of Abbot v. Bayley, (6 Pick. 89,) where it was replied to the plea of coverture, that the husband had, about eighteen years before, driven the plaintiff from his bouse by cruel treatment, and bad since lived in adultery in one State, while the wife maintained herself in another, it was said, that if the parties had lived, in the same State, it was certain that the , facts stated in the replication would not have avoided the plea of coverture.
It is now well settled, both in England and America, that where husband and wife live apart by agreement, tbe wife has no right to sue and be sued as a feme sole, and the husband’s interest in ber property is not affected. 2 Kent’s Com. (m. pp.) 154 to 162; Ames v. Chew, 5 Metcalf, 320. In England, the doctrine is, that a divorce a mensa et thoro does not confer upon the wife a capacity to sue and he sued. — Lewis v. Lee, 3 B. & C. 291. And in Pennsylvania the same doctrine seems to have been held. Clark v. Clark, 6 Watts & Ser. 85. In Massachusetts, the capacity to sue and be sued is conceded to a woman divorced a mensa et th iro ; but it is put expressly upon the ground, that the separation is sanctioned by the law. Dean v. Richmond, 5. Pick. 461. The doctrine of this Massachusetts decision has the approval of Chancellor Kent, who intimates, that it might with propriety be extended, so as to include the case of the wife of a husband imprisoned for crime. — 2 Kent’s Com. (m. p.) 158. In this State, it has been decided, that a divorce a mensa et [477]*477ihoro does not affect the husband’s right as tenant by the curtesy; and that the separation of a husband from his wife does not take away the right of reducing her property to possession. — Smoot & Nicholson v. Lecatt, 1 St. 590; Thrasher v. Ingram, 32 Ala. 645. And it is held in England, that a husband, from whom there is a divorce causa aduitsrii, may release the wife’s legacy. — Stephens v. Totty, 1 Cro. Eliz. 908; Chamberlain v. Hewson, 5 Mod. 70 ; Gilchrist v. Brown, 4 Term, 766 ; Bishop on M. & D. §§682, 683. In the same country it is decided, that the husband’s abandonment of his wife, and living in adultery in the same city, is not a sufficient reason for the court’s granting her leave to convey her property without Ills concurrence. — Ex parte Parker, 30 Eng. L. & Eq. 493. In Hyde v. Price, (3 Vesey, 437,) and the cases there cited and commented on, it is very conclusively shown, that the doctrine, that the husband’s abandonment and adultery divests him of his interest in his wife’s property, has no place in the English law.
In Kentucky, the court,, in maintaining the strict rule of the common law, has regarded the wife as subject to all the disabilities of coverture, notwithstanding the husband lived apart from her in another State.-Tuttle v. Mancy, 2 J. J. Mar. 82. See, also, Fuller v. Bartlett, 41 Maine, 241; Harris v. Taylor, 3 Sneed, 536.
In the State of Ohio, it has been held, that a wife, driven from homo by the husband’s cruelty, and living and maintaining herself separately from him, and having separate property decreed to her as alimony, may sue in respect to that property, at law, as a feme sole. — Benadum v. Pratt, 1 Ohio St. 403; Wagg v. Gibbons, 5 Ohio St. R. 580. This decision in Ohio involves a departure from the established law, and assumes the province of the legislature in giving a new characteristic to the 'matrimonial status; unless it can bo maintained upon the ground, that the property to which the suit related was secured to her as alimony. — 2 Comyn’s D. 238, Baron and Feme, O.; 1 Salk. 115. In Illinois, it has been said, in the reasoning of the court, that, if a husband compels bis wife to live separate from him permanently, without her fault, and [478]*478fails to make a suitable provision for her support, she may acquire property, control it and her person, contract, sue and be sued as a feme sole, during the continuance of such condition. — Love v. Moyneham, 16 Illinois, 277; also, Prescott v. Fisher, 22 Ill. 390.
There is a class of cases, of undisputed authority, which assert that a wife, who carries on trade upon her own account, with her husband’s consent, will, inequity, hold her earnings as a separate estate. — Pinkston v. McLemore, 31 Ala. 266 : 2 Bright on H. and W., 299; 2 Roper on H. and W., 171, 172. So, also, it is a doctrine of equity, that if the husband desert the wife, her earnings during the desertion will he treated as her separate estate. 2 Roper on H. and W., 172, 173; 2 Bright on H. and W., 299, 300, §§17, 18, 19; Cecil v. Juxon, 1 Atk. 178. This last named doctrine rests upon the principle, that he who lias abandoned his wife, and left her without a support, must be presumed to consent that she shall have the earnings of her industry, and not intend that she shall starve. Roper puts the doctine upon that principle; and the two cases of Cecil v. Juxon, (supra,) and Lamphir v. Creed, (8 Vesey, 599,) are thus harmonized; for, in the former, there was the element of abandonment, from which the husband’s consent to the wife’s carrying on trade on her own account could be inferred ; while in the latter, that element was wanting. — 2 Roper on H. and W., 172, 173, 174. In Bell on Property of H. and W., 287, 288, tlie doctrine is referred to the same principle. The presumption from the husband’s abandonment is, that ho consents for his wife to have the fruits of her industry ; not that she shall have property coming to her as a distributee. The principle upon which the doctrine rests, shows that it has no application in this case, and that it is altogether misapplied by the counsel who rest upon it a vindication of the charge of the court below.
The decision in Starrett v. Wynn, (17 S. & R. 130,) referred to by the counsel for the appellee, seems from the opinion to have been made in reference to the property acquired by the wife during the period of the husband’s desertion; and as courts of law in Pennsylvania (there [479]*479being no chancery court) enforce equitable rights, the decision muy be referred to the equitable doctrine, that an abandoned wife is entitled to her earnings. It is quoted as an authority to that effect by Chancellor Kent, (2 Kent’s Com. 164,) and it is only when viewed in that light that it can be considered as an authority supported by any sound principle. We confess, however, that an examination of Knapp v. Scholl, (10 Penn. St. R. 193,) and Bonslaugh v. Bonslaugh, (17 S. & R. 361,) in connection with Starrett v. Wynn, (supra,) inclines us to think, that in Pennsylvania, the husband’s abandonment of his wife is regarded as depriving him of liis marital right in her property.
There is, also, a class of cases, in which a court of equity lays hold of the wife’s equitable property coming within its reach, and out of it makes provision for her maintenance, where the husband bas deserted or mistreated her. There seems to be no fixed rule as to the amount of provision to bo made for the wife in sueb cases; but whore the abandonment of the wife was total and permanent, the chancellor has gone to the extent of appropriating the wife’s entire property coming within his power to her maintenance. — Drummond v. McGee, 4 Johns. Ch. R. 318; Bell on Property of H. and W., 137, 138; 2 Story’s Eq. Ju. § 1424; Wildman v. Wildman, 9 Vesey, 174; 2 Kent’s Com. 140; Kenny v. Udall, 6 Johns. Ch. 464. But this class of cases can have no application, where the title of the liusband has been perfected by the reduction of the property into the actual possession of the wife pending the coverture.
This extended collation of the authorities indicates the existence of some decisions, which would sustain the position, that the marital right of Beil never attached, in consequence of his desertion of his wife, and his adultery; but the great weight of authority in this country, and the rulings of all the courts in England, and the opinions of tho text-writers, are the other way. And besides, such a doctrine is at variance with the common-law theory of the marriage relation. It. would attach to a voluntary separation on the husband’s part all the consquences of a [480]*480divorce a vinculo, so far as the wife’s capacity to contract, to sue and be sued, and to acquire property, is concerned. It would deprive the husband of his interest, jure mariti, in his wife’s property, while he remains liable for her maintenance. It would free the wife from all the disabilities of coverture, while all the legal remedies, for enforcing against the husband his liabilities and responsibilities remained open. It would deprive the husband of all interest in the wife’s property, but leave her right to dower and a distributive share in his estate unaffected. We cannot follow the authority in favor of that position, and must decide, that the desertion and infidelity of Boll did not prevent his marital right from attaching to the property in question.
We now come to the second point of inquiry growing out of the first char’ge given, which is as to the effect of the intentional, leaving by the husband of the property to the exclusive control and enjoyment of the wife, separated from him, coupled with the intention that she should have a separate estate in it. In the outset of this opinion, we adduced the authorities which establish that the failure of the husband to take the control of the property, his wife being in possession, could not prevent the vesting-of his right, because the possession of the wife is the possession of the husband. This leaves nothing to be considered in reference to this last point,• save the effect of the‘husband’s intention that his wife should have a separate estate. If the marital rights of the husband attached upon the reduction of the slave into the wife’s possession, it remained the property of the husband, unless ho subsequently gave it to the wife. It seems that such a gift was not made, and if it had been made, it could ojily be available in equity. The question is reduced to this, whether the husband's rights attached; and that depends upon the other question, whether the husband’s intention that his right should not vest, and that his wife should have a separate estate, is sufficient to exclude the right jure mariti, and invest the wife with a separate estate. In the examination of this question, we need not look beyond the decisions of our predecessors in this court; for [481]*481there is, perhaps, no country where this subject has been more thoroughly examined.
The case of Puryear v. Puryear, (12 Ala. 13,) was an action by the husband’s representative, to recover money, arising from the hire of a negro, which the wife had hired out, in her own name, with her husband’s consent. A part of the money had been received by the husband, and paid over to her by him. The husband declared the slave to be hers, and recognized her right to lend out the money, and to receive payment of it. These positive acts of the husband were held sufficient to show a gift by the husband to the wife. The decision is not based upon a bare iutention of the husband that the wife should have the property, but upon acts amounting to a gift. In the case of Machem v. Machem, as reported in 28 Ala. 374, the decision that the husband did not reduce the property to possession as husband, and that the wife took a separate estate, is placed upon the ground, that the delivery to the wife was qualified, as being made for her separately from her husband, by his positive direction or consent. The same position is taken in Jennings v. Blocker, (25 Ala. 415,) where it is said, that the husband “ may repudiate all claim as husband to property given to the wife, and elect to treat it as hers, and hold or control it as her trustee; and if this election is made before the right or title is vested in him, and the coverture is determined while it is so held, his marital rights cannot be asserted afterwards to it.” In that ease, the receipt of the property was accompanied by the consent of the husband that it should be the wife’s, and should bo lield as liers. In Gillespie v. Burleson, (28 Ala 551,) a similar question arose, and it was clearly signified, that the husband’s consent, given at the time of the delivery of a slave to the wife, was necessary, to so qualify the delivery as to exclude his marital right. In Lockhart v. Cameron, (29 Ala. 355,) the principle was thus announced: “When' the husband receives the property as the separate property of the ivife,” and holds it openly and avowedly in the same right during the continuance of the coverture, “his right to the property never does attach, because be never re[482]*482ducod it to possession as husband.” The authoritior.thns collated suffice to show, that in all the eases where the husband has been excluded from the ownership of the wife’ü property during the coverture, it has been upon the ground'of his positive assent to that exclusion, qualifying the delivery or reduction to possession. There is no ease, in which the more intent of the husband that the wife should have a separate estate in the property, has been held to take away his right as husband. rrihe husband has a positive right to the chattels of the wife reduced to possession, and he is not divested of that right by a mere unexecuted intention so to divest himself. It is not enough that the husband intends not to claim his right, lie must actually and positively assent to his exclusion. We understand the first, charge to assert the contrary doctrine, and we must declare it to be erroneous in doing so.
The delivery of the slave Linda to Mrs. Bell, as her distributive share in her lmsband’s estate, by-tlie admin isistrator of that estate, vested such legal title as belonged to the estate; and it was competent to prove the contents of tlio burnt record.
We do not deem it necessary to notice the other questions presented.
Judgment reversed, and cause remanded.