majority">B. F. SAFFOLD, J.

The appellant sued the appellees for the conversion of property, the legal title and possession of which he claimed as a trustee. In support of this claim he offered in evidence a deed from Yernon H. Yaughan to him, reciting that in consideration of eight thousand dollars of Confederate currency, the separate estate of his wife, Cornelia, received by him, the said Yaughan conveyed to the plaintiff in trust for his said wife certain real and personal property therein described, the title to which was in his own name, though it had been procured chiefly by his investment of the funds above mentioned. The property alleged to have been converted is a part of that described in the deed. This evidence was excluded, on the ground that so far from showing the right of the plaintiff to maintain the suit, it made apparent his want of title to the property. The plaintiff having, as a *327witness in Ms own behalf, testified to the facts recited in the deed, the court charged, at the request of the defendants, that the jury must find for them, which was accordingly done.

The correctness of the action of the court is maintained for the appellees on the ground that the statute (Revised Code, § 2372,) vests in the husband, as her trustee, the property of his wife, and he can not by such a conveyance divest himself of that character, and confer it upon another. And further, that as husband and wife can not “contract with each other for the sale of any property,’ (Rev. Code, § 2374,) he can not do so even with the consent of his wife.

In many instances the only evidence of title to property is its possession, identity and the source whence it was derived. These will do unless another holds title deeds and papers which obscure, even if they do not repel, the rightful ownership. When this is the case the real owner has his right of action to establish his ownership. If the possessor of these muniments does voluntarily what the law would compel him to do, his action will be maintained. Wilson v. Shepperd, 28 Ala. 623.

Where the husband converts the corpus of his wife’s property, using it in the purchase of property, the title to which he takes in his own name, he is her debtor. — Jenkins v. McConnice, 26 Ala. 213. The prohibition against contracts between husband and wife, in § 2374, Revised Code, introduced no new feature into the law governing the marital relation. Nor did the quasi trusteeship of the husband, created by § 2d72, Rev. Code, limit her sources of receiving property. In Lady Arundel v. Phipps, 10 Vesey, 139, a purchase by a married woman from her husband, through the medium of trustees for her separate use and appointment was declared to be sustainable against creditors, if bona fide, though the husband be indebted at the time, and the purpose being to preserve from his creditors for the family the subject of the purchase, Lord Eldon declaring that tbe doctrine was not so either in equity or at law, that husband and wife could not after marriage contract for a *328bona fide and valuable consideration for a transfer of property from him to her, or trustees for her.

Shall we deny the power of a husband to pay a debt due to his wife by a conveyance of his property to a trustee for her use, in order to preserve his trusteeship of her property ? Section 2372, Rev. Code, refers only to such property as the husband may be trustee of, and does not forbid the acquisition by the wife of property of which he can not be her trustee. So, § 2372, Rev. Code, refers to contracts directly between them other than such as the law would compel him to make. The rulings of the court above mentioned were erroneous.

The judgment is reversed and the cause remanded.

Citation profile

Relationships

How this case has been treated — in progress