
    High, et al. v. Whitfield.
    
      Bill in Equity for an Injunction.
    
    1. Alienation of property by married woman; husband's assent not necessary when he and wife non-residents.- — The provisions of the statute authorizing a married woman to alienate her lands or any interest therein without the assent and concurrence of her husband manifested by his joining in the alienation, if the husband is a non-resident of the State, (Code, § 2528), applies as well when the wife and husband are both non-residents, as where the husband alone is a nonresident; and, therefore, when the wife and husband are both non-residents of the State, an alienation of her lands or any interest therein, without the assent or concurrence of the husband, is a valid conveyance.
    2. 'Equity jurisdiction; when trespasses will not be enjoined. — A bill in equity which complains that the defendant is trespassing upon the complainant’s lands by hauling coal over them, and prays that the defendant be enjoined from so doing, can not be maintained upon the ground of trespass alone; the law furnishing the complainant an adequate remedy for the grievance complained of.
    Apiusal from the Chancery Court of Walker.
    Heard before the Hon. J. C. Carmichael.
    The bill in this case was filed by the appellee, B. W. Whitfield, Jr., against the appellant, H. E. High and S. J. Higli, partners, doing business under the name of Tupelo Coal 'Company, and the Stobert & Donaldson Coal Mining Co.
    The facts of the case, as averred in the bill, are, that on the 18th day of January, 1889, and since, Sophronia A. Moiphew ivas a married Avoman, the Avife of Silas Morpliew; that they both were then non-residents of the State of Alabama, and have continuously since been non-residents and lived together in the State of Arkansas; that on that date, for value, DaAdd Davis and Avife, of Walker county, Alabama, conveyed to said Sophronia the land described in section tAvo of the bill; that their conveyance was duly acknoAAdedged, on the day of its execution, and recorded on the 26th April, 1899, in the probate office of Walker county, Alabama; that at the date of' said conveyance and continuously since, the husband of said Sophronia aavis and has been of sound mind, lias not abandoned his said wife, nor been under coimetion of 'Crime for two years or more; that on the 13th of November, 1894, the said Sophronia executed a poAver of attorney to one G. J. Davis, authorizing and empoAvering him to lease the mineral on her said lands, Avhich poAver of attorney purports to have been executed and delivered in the presence of John P. Morphew, a justice of the peace in and for Pike county, Arkansas; that the husband of isaid Sophronia did not join in the said power of attorney, nor Avas his assent or concurrence thereto expressed in writing, obtained to the execution of said poAver; that at that time, said Sophronia and her husband Avere living together in the State of Arkansas, and were non-residents of Alabama; that on the 3d of February, 1896, under and by virtue of said poAver of attorney, the said Davis executed to L. A. Tune and T. J. Scott, who are and Avere non-residents of the State of Alabama, a lease on the coal of said lands, and the assent and concurrence of the said husband of Sophronia, expressed in writing was not obtained to the execution of said lease. This lease contract and the power of attorney to said G. J. Davis under which it was executed, were each duly recorded in the probate office of Walker county on the 3d day of February, 1896.
    
      It is further shown that on the 20th -day of May, 1899, the said S’ophronia and her said husband, by deed duly executed, sold and conveyed to the complainant, the said lands above referred to, and that under said conveyance, complainant took possession of said lands, and has had possession of them ever since; that on the 14th May, 1896, the said Tune and Scott sold, and by their deed, conveyed to the defendants, H. E. and S. J. High, all their interest in said lands, and that they and the defendant company, the Stobert & Donaldson Coal Mining Company, are removing' the coal from said lands, thereby committing trespass thereupon, without any authority or permission of Complainant and against his protest, and are hauling the same over other land belonging to complainant, without his permission and against his protest.
    It is further alleged that said H. E. and S. J. High are n'on-residents of Alabama, and that the other respondent, the said Stobert & Donaldson Coal Mining Company, did not have sufficient property out of which complainant could recover the amount due him for the taking of the coal from said lands; that the lands are chiefly valuable for the coal therein, and if respondents are permitted to mine the coal therefrom it would practically be o'f no value to complainant.
    The prayer of the bill was that a temporary injunction be issued, restraining and enjoining the defendants from mining the coal in the lands described in section two of the bill, and from hauling the same over the other lands of complainant; that such injunction, on final hearing, be made perpetual; that said lease executed by said G. J. Davis under said power, to said L. A. Tune and S. J. Scott, be cancelled as a cloud on complainant’s title to. the lands described in said section two of the bill.
    The defendant moved to dismiss the bill for the want of equity, and to dissolve the temporary injunction. They also demurred to the bill, assigning many grounds therefor, among which was that it was 'shown by the averments of the bill that Sophronia A. Morphew was lawfully authorized to execute the power of attorney to G. J. - Davis, without the written assent or concurrence of -her husband, because she and her husband were, at the time of the execution of said power of attorney, nonresidents of the State of Alabama.
    On the submission of the cause upon the several motions and the demurrer, the court overruled each of said motions and also overruled the demurrer. From this decree the defendants appeal, and assign the rendition thereof as error.
    Allen & Robins and Wm. C. Davis, for appellant,
    A statute which excepts the husband who is a non-resident from joining in alienation of the wife’s lands, is without any limitation, and the fact that the wife, as well as the husband is a non-resident, does not render it necessary for the husband to join in the conveyance. Code, § 2528; Know v. Land Go., 86 Ala. 180; Flowers v. Steiner, 108 Ala. 440.
    Coleman & Bankhead, contra.
    
    The failure of the husband of Sophronia A. Morphew to join in the leg.se to 'Tune and Scott, rendered that lease absolutely void. Adams v. Teague, 123 Ala. 591; Johnson v. Go/f, 116 Ala. 648; Davidson v. Cox, 112 Ala. 510.
   HARALSON, J.

The controlling question 'in the case is, whether the lease of the lands mentioned in the bill, by G. J. Davis, in the name of Mrs. Morphew, under the power from her to him, executed without the consent and concurrence of her husband expressed in writing, was a valid conveyance by lease of said lands or not.

At the time of the execution of said lease, section 2346 of the Code of 1886 was of force, which provided, that “the wife has full legal capacity to contract in writing as if she were sole, with the assent and concurrence of her husband expressed in writing,” but by section 2348 of that Code, it was provided, — as now by section 2528 of the Code of 1896, — that “the wife, if. the husband be of sound mind, and has not abandoned her, or be not a non-resident of the State, or be not imprisoned under a conviction for crime for a period exceeding two years, cannot alienate her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed for the execution of conveyances of land.” This was an absolute inhibition on the wife’s power to alienate her lands, or any interest in them, if one of the alternate conditions as to the husband, as specified, did not exist; but, if either of these specific conditions did exist, the wife was empowered to alienate her lands, as if she were sole. None of these conditions have any application to this case, except the one as to the non-residence of the husband.

The bill shows, that the wife, Mrs. Morphew, owned the lands in question; that she and her husband lived together as husband and wife, in the State of Arkansas, at the time she executed said power of attorney, and the lease under it, and that her husband did not join in the execution of said power, nor in the lease executed by the attorney in fact to said Tune and Scott, under whom defendants claim.

It is insisted for complainant that the exception of the non-residence of the husband, applies only to cases where the wife is a resident and the husband is a nonresident of the State. On the other hand, the construction is urged and relied on, that if both the husband and wife are non-residents of this State, as in the present case, the wife may alienate her lands, as if she were sole.

It is a settled general rule, that a woman acquires, at marriage, the domicile of her husband, and her domicile continues to be the same as his, and changes with his, throughout the marriage. An exception to this rule prevails, as is held, to the extent, that the Avife must be alloAved, for the purpose of obtaining a divorce, to acquire a separate domicile in the State in Avhich she is actually living >at the time she is deserted by her husband.—Hanberry v. Hanberry, 29 Ala. 719; 5 Am. & Eng. Encyc. Law (1st ed.), 868.

Construing said section 2848 of the Code of 1886 (section 2528 of Code of 1896) by its language, it appears to make no exception as to the residence of the Avife. It deals only Avith the non-residence of the husband. Without importing, by 'Construction, into the statute other words than 'those it contains, which Ave do not feel authorized to do, it seems to us, that it must be construed by its very terms, by which the wife, Avithout reference to her residence in this or in another State, may alienate her lands if her husband is a nonresident of Alabama. This ' construction meets, precisely, the condition of the Aidfe and her husband, at the date of the execution of said power by the Aidfe to said G. J. DaAds, and of the execution by him of said lease contract- in her name, to said Tune and Scott, under AAdiom defendants claim. Under these instruments, the grantees in said lease acquired a good title to Avbat Avas comreyed thereunder. They Avere of record in the probate office of Walker county, long before the complainant acquired his deed to said lands from Mrs. Mor-phew and her husband, and he had constructive notice of the same.

The said lease contract 'conveyed to the grantees therein, not only all the coal under the lands described, but, also, during the term of the lease, — 18 years from its date, — the right of Avar on the surface of said lands for the purpose of building or making railroads or Avagon roads, and to all the timber and water necessary to successfully mine and remoA'e 'said coal. The complaint is made, that defendants are hauling their coal AA’hen mined, over lands of complainant adjoining the lands covered by said lease, and prays that defendants be enjoined from so doing. If this is true, the complainant Avould have no right, on this ground, alone, to maintain the bill to prevent such a trespass. The law furnisher him an adequate remedy for such a grievance.

It folloAVS, the injunction Avas improperly perpetuated. The decree beloAv Avill be reversed, and one Avill be here rendered dissolving the injunction and dismissing the bill.

Reversed and rendered.  