Braune v. McGee

50 Ala. 359

• Court: Supreme Court of Alabama
• Decided: January 15, 1874
• Status: Published

Opinion

PETERS, C. J.

This cause was here on appeal, and reversed and remanded, at the June term, 1871; but this does not forbid a second appeal from a decree rendered in the case since the reversal, nor does it confine this court to the decision rendered on the former hearing. Although the law was once otherwise, it is now required that, “ The supreme court, in deciding each case, where there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion at that time, is the law, without regard to such former ruling of the law by it.” Rev. Code, §§ 666, 3510.

I am not able to perceive from anything apparent on the record, or urged in this court, that the present case differs, in any essential particulars, from the case which was brought here on the former appeal. The question, then, now presented, is whether the opinion of this court, delivered upon the decision of the former appeal, contains a correct exposition of the law governing the issue raised by the pleadings in the court below. There is nothing materially variant in the deed in this case, from what is usually inserted in an ordinary marriage settlement of the wife’s estate on a trustee, to be held for her sole and separate use. So far as the record discloses, Miss Mason, now Mrs. McGee, was possessed of the absolute property in the estate mentioned and conveyed in her deed to Kirksey. It was, then, her separate estate, and would have continued so after her marriage with McGee, had no deed been made ,• but she would have held it under the statute, and McGee, her husband, would have been her trustee. Rev. Code, §§ 2371, 2372. By the conveyance, she substituted Kirksey as trustee, instead of her intended husband, and made the conveyance her title to her estate instead of the Code. This she had the right to do. There was no law that forbid it. And being the absolute owner of her property, she could dispose of it as she pleased, under the limitations of the existing laws. Crawford v. Kirksey, at June term, 1872; 8 Wheat. 242; 7 Ala. 619; 2 Kent, 326, 327 ; 21 Ala. 590, 608 ; 8 Pet. 220, 238. But, as long as she retained any interest in it, she could not withdraw this interest from liability for the payment of such debts as she might be permitted by law to contract. All property, not exempt by legislative enactment from sale on execution, or other final process of any court, is held subject to the payment of the owner’s debts legally contracted. Rev. Code, § 2871. A married woman is bound to pay such debt as she may contract, to the same extent that any one else would be ; and she cannot make a conveyance to defeat this liability thus imposed by law. If she is the owner of a separate estate under the law of the Code, she can only enter into such contracts as that system permits ; and these contracts must be enforced by the remedies given by the Code. Wilkinson v. Cheatham, 45 Ala. 337; Cowles v. Marks, at January term, 1872, 47 Ala. 612. On the other hand, if a married woman owns a separate estate in the hands of her trustee, conveyed to such trustee by contract, this is not held under the statute regulating the separate estates of married women, but under the conveyance by which it was created. An estate so held is sometimes distinguished as “ a separate estate at common law,” or “ a contract separate estate.” Sprague v. Tyson, 44 Ala. 338. A married woman, owning such an estate, “is regarded in equity, so far as her separate estate, created by contract, is concerned, as a feme sole, and she may bind her separate estate by any contract, by which she could bind herself if sole and unmarried,” except so far as the deed is a limit to her powers. Gunter v. Williams & Wife, 40 Ala. 561; Faulk v. Wolfe & Gillespie, 34 Ala. 541; Roper v. Roper, 29 Ala. 247; Booker v. Booker, 32 Ala. 473; Drake & Wife v. Glover, 30 Ala. 382; Forrest v. Robinson, 4 Port. 44; Brame v. McGee et al. 46 Ala. 170, and cases cited in the opinion of Peck, C. J.

The due bill executed by Mrs. McGee, as alleged in the pleadings in this case, is a charge upon her separate estate in the hands of her trustee, Kirksey, or wherever it may be found within the jurisdiction of the court; and she is bound to pay it out of her separate estate, unless she can show that it is void for some legal reason, or that it is destitute of a consideration sufficient to support it, or that it was not executed by her or by her direction. Ozley v. Ikelheimer, 26 Ala. 332, and cases there cited; Sprague v. Tyson, supra.

There was, then, no misapprehension of the law of this case when it was here before ; and we feel bound to adhere to the opinion then delivered by the venerable chief justice, who then presided as the head of this tribunal. The learned chancellor erred in sustaining the demurrer, as shown in the record, and dismissing the bill in the court below. He should have overruled the demurrer, and required the parties to proceed to trial on the merits, when they might be ready to do so, according to the rules of practice in that court. '

The judgment of the court below is reversed, and the cause is remanded for further proceedings, in accordance with the law as expounded in this opinion. The appellees will pay the costs of this appeal, in this court, and in the court below.