CANTY vs. SANDERFORD

CANTY vs. SANDERFORD. ' .|*»HTrXUB BY WIFE, AGAINST PURCHASER FROM HUSBAND, FOR PROPERTY BELONGING TO STATUTORT SEPARATE ESTATE.] .1-. Sale by husbavct of wife’s- statu Ian/ properly/ whether wife is estopped. — . ' If tlie wife is present at a sale Toy tier husband of personal property ■belonging to her statutory separate estate, and assents to it, or mates .. no objection to it, but (loos not join with liim in a conveyance of titlo,, . she is not estopped from recovering the property from the purchaser, . -or one-claiming under him, .'"Appeal from-the Circuit Court of Choctaw, Tried before the Hon. C, W. Rapier. This action was brought by Mrs. Damarius Canty, - against John Sanderford, to recover a horse, which the plaintiff claimed as a part of her separate estate under the laws of this State, and to which the defendant asserted title as a derivative purchaser from F. M. Canty, the plaintiff’s late husband. The date of the plaintiff’s marriage with F« 7l\l. Canty, and the time when she acquired, the property, .are nowhere stated in the record; but the-bill of exceptions states, that she bought the horse, at an administrator’s • sale, “in 18-5 — -,which was prior to her marriage with said JF. M. Canty.” During the coverture,-said Canty sold the „■ horse to one Bankham, who sold to one Moore, who sold to - the defendant. The sale by Canty was verbal; and it appeared that the plaintiff' was present at the time, and did not object to it. Canty afterwards abandoned the plaintiff, and she obtained a divorce from him before the commencement oí this suit. The court charged the jury;- “that if’ they believed the-plaintiif purchased the horse since 1848,- and before her marriage with-F. M. Cánty, and’owned it" as her separate estate ;• and that she was present at'the sale* by said F. M. Canty to Bankham, and assented to it; or' that she was present at the sale, and knew of it, and made no objection to it, — she would be estopped from recovering: the property from a person claiming under that sale.” The’ charge of the court, to which- the plaintiff excepted, with» other matters, is now assigned as error.. Gr. F. Smith, for appellant. [MAJORITY — STONE, J.] 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.