McIlwain v. Vaughan

76 Ala. 489

Opinion

SOMERNILLE, J.

— The property, for the conversion of which the present suit is brought, is shown to have been the equitable separate estate of the wife, created by a direct gift made to her by her husband, and reduced to possession. The suit should, therefore, have been brought in the name of the husband alone, as trustee, and uot in the names of the husband and wife jointly. The improper joinder of the wife, as one of the co-plaintiffs, presents a case of variance between the allegata and probata, which necessitates a reversal of the cause. — McCall v. Jones, 72 Ala. 368; Dickens v. Oliver, 29 Ala. 528.

"We have examined the rulings of the court, and find no other reversible error in the record. The cause will be remanded, in order that the plaintiffs may amend the pleadings, so as to obviate this variance, if desired.

Reversed and remanded.