Carter v. Wann

PETEBS, J.

The main question in this case is this: *347Can the wife, after the death of the husband, be sued alone, in an action at law to enforce the liability of her separate estate on contracts for articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for which the' husband would be responsible at common law ?

This question remains unsolved. No doubt the husband may be sued alone on such contracts, when the wife has a separate statutory estate; and no doubt the husband and wife may be sued jointly on like cause of action. This is according to the very words of the statute. — Eev. Code, § 2376. The language of the Code is this: “For all contracts for articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law, the separate estate of the wife is liable; to be enforced by action at law, against'the husband alone, or against the husband and wife jointly.”

“ If suit is brought against the husband alone, upon such contract, and execution is returned not satisfied,” the separate estate of the wife may be sold, by order of the court, for the satisfaction of the judgment; ten days notice, in writing, being given to the wife, of the intended motion.” — Eev. Code, §§ 2376,2377.

In discussing this statute, Mr. Justice Walker, in delivering the opinion of the court in the case of Rodgers' Adm’r v. Brazeale, lays it down as a fundamental principle, that “these sections provide the only modes in which the separate estate of the wife may be subjected by action. The forms of redress designated for this purpose are— first, an action against the husband and wife jointly; second, an action against the husband alone, to be followed upon the return of the execution against him ‘ no property found,’ by a motion against the wife, for an order to sell her separate estate to satisfy the judgment.” — 34 Ala. 512, 515, 516. In this case, the action at law was against the administrator of the wife’s estate, after death, and the court decided that “ the plaintiff could not maintain the action.” This conclusion must have been reached on the grounds intimated in the opinion, that only those persons *348could be sued at law who are designated in the statute, and in the manner directed in the statute — that is, against the husband alone, or the husband and wife jointly; or, that the liability was only against the wife’s separate estate, and not against her in her personal capacity. Under this construction, no action at law could have been maintained against the wife alone, during her husband’s life. She could only be sued jointly with him. This was her right under the statute. It is one of the incidents which the law attaches to the contract of marriage in this State, and the death of the husband does not forfeit it or impair it.

Unless marriage is to be treated as a capture or a subjugation on the part of the wife, in favor of the husband and his creditors, she must be protected in all the immunities which the marital contract brings her. And one of these immunities is, that the liability of her separate statutory estate to the payment of such claims as those here sued on, can not be enforced by action at law against her alone, but only in one of the two modes designated in the statute giving the remedy at law. The mode of the remedy is specific, and consequently exclusive, so far as an action at law is involved.

The liability, and the form of its enforcement, are each given by the statute. Neither existed at common law. The words of the statute, then, limit both. All just construction confines the courts to this limit in both particulars ; that is, to the extent of the liability and the form of the remedy. In this, the argument of the court in Cunningham v. Fontaine, 25 Ala. 644, goes beyond the safe limit of construction. It is an effort by the judiciary to add a proviso to the act which the legislature omitted. Except in this case, this important statute has always received a strict construction, and I think it best still to adhere to it. — Bibb v. Pope, 43 Ala. 190; Alexander v. Saulsbury, 37 Ala. 375; Warfield v. Ravesies and Wife, 38 Ala. 518; Nation v. Roberts, 20 Ala. 544; Zackowski v. Jones, 20 Ala. 189; Smith Com. p. 676, § 530.

The complaint shows that the defendant, Mrs. Carter, was a married woman when the contracts on which the *349suit was founded were entered into ; that her husband was then alive, but has since died; that she then had, and still has, a statutory separate estate; that the things supplied by the plaintiff were articles of comfort and support for the household, suitable to the degree and condition in life of the family, and for whieh the husband would be responsible at common law, and that the wife alone was sued after the death of the husband. Under such a state of facts, the action can not be maintained against the wife alone.

In its present shape, the complaint does not show a sufficient cause of action against Mrs. Carter, the appellant. In such a case, a reversal will be allowed. — Emanuel v. Ketchum, 21 Ala. 257.

Let the judgment of the court below be reversed and the cause remanded.