It is the accepted construction of the statutory provisions, rendering a wife’s separate estate liable “ for articles of comfort and support of the household,” and prescribing an action at law, as a remedy to enforce the liability, that thereby the capacity of the wife to contract is not enlarged, nor is her personal liability to suit and judgment at law increased. As to the wife, the suit at law is rather a proceeding in rem than in personam. The judgment rendered, as to her, ascertains and concludes no fact except that she has a separate estate, subject to its satisfaction. It is of consequence a rule of pleading, that to support the proceeding, the existence of this estate must be averred, and that it may be known on what the judgment is to operate, it must be described. The separate estate being an indispensable element of the proceeding, it must exist when the contract is made, out of which its liability arises; and its existence must continue to the institution of suit. If when the contract is made, the estate does not exist, the liability cannot arise; and if it is exhausted or from any cause ceases to exist before institution of suit, there would .be no foundation for a judgment as to the wife. This appears to. be the reasoning on which the court has often declared that, to support the suit, it must appear from the complaint that the wife had a statutory separate estate, at the making of the contract, continuing to the commencement of suit. Henry v. Hickman, 22 Ala. 685 ; Cunningham v. Fontaine, 25 Ala. 644; Durden v. McWilliams, 31 Ala. 438; Sprague v. Daniels, Ib. 444; Ravesies v. Stoddard, 32 Ala. 599; Childress v. Mann, 33 Ala. 206.
_ The complaint in this cause conforms strictly to this rule. On the trial to support the averment that the wife had a statutory separate estate in the lands described in the complaint, the plaintiff offered in evidence a mortgage executed by husband and wife in 1869, reciting that in 1867 the wife had purchased the lands at a sale made under a decree in chancery, and conveying them to her sureties for the purchase-money, to indemnify them against loss. The account on which the suit is founded was contracted in 1869, partly before, and partly after the mortgage. To the introduction of the mortgage as evidence, the appellants objected because it did not show or tend to show *165the estate of the wife in the lands was a statutory separate estate. The objection was overruled. Subsequently evidence was given, that the father of the wife died seised of the lands, and they descended to his heirs; that to effect a division, a sale was made by a register in chancery, at which the wife became the purchaser; that she gave a note for the purchase-money, with two sureties, one of whom soon after the making of the mortgage paid it, and has not been reimbursed. The husband and wife, on the purchase in 1867, entered into possession, and remained in possession to the time of the trial. It is insisted the wife had not capacity to make the purchase, and that of consequence she acquired no estate in the lands. Without affirming or disaffirming her capacity to make the purchase, we are satisfied it conferred on her a statutory separate estate, which remains until she shall by some proper proceeding elect to repudiate it. A defence of this suit, is not the proper mode of manifesting that election. If such a defence should be entertained, the consequence would be that she would remain in possession of a valuable estate, her husband taking its rents and profits, and her creditors, who have supplied her and her family with the necessaries of life, set at defiance., In this suit, and for all its purposes, she must be deemed to have in the lands a statutory separate estate, and so the circuit court correctly ruled.
Some articles in the account seem to have been purchased for servants in the family. These, it is insisted, are not properly chargeable on the wife’s statutory estate. Servants necessarily employed and residing in the family (and the necessity for their employment .was not mooted on the trial) are a part of the “ household,” within the meaning of the statute. Necessaries supplied them can be charged oh the wife’s estate.
There is no error in the record and the judgment is affirmed.