Canty v. Sanderford

37 Ala. 91

Opinion

STONE, J.

We think the circuit court erred in both features of its charge to the jury. Tile act of 1850 (§ 5). declares, that “ such property [that is, property belonging to the wife’s separate estate secured to her under that act], may. .be sold by the husband and wife, and' conveyed by their joint deed.” — Session Acts 1849-50, p.'64. The Code (§ 1984). declares, that the separate property of the' wife “ may be sold by the husband and wife, and-coriveyed’ by them.jointly, by instrument of writing attested by two’ witnesses.. — See Durden v. McWilliams, 31 Ala. 440. “ These provisions are obviously restrictive of the right of disposition, and were doubtless intended to prohibit any sale of the wife’s property, except such-as might be made by the husband and wife.” — Alexander v. Saulbury, at the present term, and authorities-there cited- The “ doctrine of estoppel, for a mere omission to assert one’s right, does not apply to the wife, where her husband makes an unauthorized sale of her property.'in, her presence.” — Drake v. Glover, 30 Ala. 390.

Bevcrsed-and remanded.