
    CANNON vs. TURNER.
    [action at law against separate estate of feme covert.]
    1. Provisions of Code not applicable to separate enlates created by deed. — The provisions of the Code, (§§ 1981-97,) respecting the separate estates of married women, do not apply to separate estates created by deed, either before or since the adoption of the Code.
    2. When action lies not against wife.■ — Under the provisions of the Code, (§§ 1987, 2131,) an action at law does not lie against a married woman, either before or after the death of her husband, to subject her separate estate created by deed to the payment of necessary articles of family supply.
    Appeal from tlie City Court of Mobile.
    Tried before tbe Hon. Alex. McKiNStby.
    The complaint in tbis case, as amended, was as follows:
    “Jarvis Turner ^ The plaintiff claims of the defend-vs. lant the sum of $377 50, for wTork Bllinor M. Cannon.) and labor done and materials supplied in furnishing and adding to the comfort and convenience of the dwelling-house of the defendant, at her instance and request, with interest from the 1st November, 1854.
    “And plaintiff avers, also, that defendant was a married woman, and owned and possessed a separate-estate independent of her said husband, to-wit, a certain lot and building thereon situate on Spring Hill in the county aforesaid, the dwelling-house of said defendant and her husband and family, together with a separate personal estate; all of which land and personalty was held as her separate property under and by virtue of the statute laws of Alabama as declared by the Code, and acquired since the adoption of the Code. And plaintiff avers, that all the.said work and labor was done upon, and for the pei’-rnanent improvement of said house; and that plaintiff performed work and labor, and [furnished] materials for said defendant on said property, for the use and benefit of said defendant, to the amount and value of $375, at her and her husband’s instance: and that all the said articles, labor, materials, &c., were articles of comfort and support of the household of the said defendant and her husband, then kept by them in the house aforesaid, and were suitable to the degree and condition in life of the said family: and that the said husband departed- this life before the bringing of this suit.”
    The defendant demurred to the entire complaint, as amended, on account of a misjoinder of causes of action, and to the second count on the following grounds: “ 1st, because the cause of action set up is not such as comes within the provisions of section 198T of the Code; 2d, because the law requires such a suit to be brought against husband and 'wife jointly, and the wife is not liable to be sued alone upon such a cause of action ; and, 3d, because it is not sufficiently alleged, that the defendant’s alleged separate estate was held in such way as to entitle the plaintiff to maintain this action against her, as having a separate estate under the Code.” The court overruled the demurrer, and the defendant then pleaded the general issue, “ in short by consent, with leave to give any special matter in evidence.”
    On the trial, as appears from the bill of exceptions, the plaintiff proved the performance of the work alleged in the complaint, and the value of the services, materials, &c.; and, for the purpose of showing that the defendant had a separate estate, read in evidence a quit-claim deed from Wm. A. Dawson and wife, dated the 30th May, 1853, by which certain lauds were conveyed to her, u to have and to hold the said premises unto the said Ellinor Martha Cannon, as separate property, and to her heirs and assigns, to her own proper use, benefit and behoof, forever.” Plaintiff proved, also, “ that the property named in said deed had been paid for by defendant’s husband, and conveyed to her at his request.” No other evidence was offered, tending to show that the defendant had a separate estate at the time of the accrual of plaintiff’s cause of action. The court charged the jury, among other things, that the deed from Dawson and wife “ created a separate estate in the defendant, within the meaning of that part of the Code' of Alabama contained in. the third article of the first chapter of title 5, part 2.” This charge, to which the defendant excepted, is now assigned as error, together with several other matters immaterial to the points decided by this court.
    P. HamiltoN, for appellant.
    Jno. T. Taylob,, contra.
    
   WALKER, J.

After the most careful consideration, we decided in Pickens and Wife v. Oliver, 29 Ala. 528, that the provisions of article 3, chapter I, title 5, part 2, of the Code, “ relate to and provide for estates of married women which arc made separate by operation of law; estates created by descent, gift, or in some other manner, without words lohich would have created a separate estate before our statutes on the subject; and not to estates which, independent of legislation, would have been separate by operation of the instrument or contract creating them.” — Gerald and Wife v. McKenzie, 27 Ala. 166; Friend v. Oliver, 27 Ala. 532; Willis v. Cadenhead, 28 Ala. 473; Gibson v. Marquis, 29 Ala. 668.

Section 1997, the last of the article above named, makes the provisions of the article operative on the estates of all married women, who have received property by descent, gift, or otherwise, since the first of March, 1848. If the distinction between separate estates created by law, and such estates created by conti’act, had not been made, the Code would have been unconstitutional in its operation upon separate estates created in the latter mode, after the first of March, 1848, and before the adoption of the Code. Influenced by that consideration, we drew the distinction in Willis v. Cadenhead, as to all separate estates created before the Code. That distinction we must extend to estates created afterwards, or else we must make an arbitrary and senseless discrimination iu the effect of the same words, when applied to instruments of different dates, equally within the letter of the statute.

Under the principle of the decision in Gibson v. Marquis and Wife, 29 Ala. 668, the coverture of the appellant at the time when the contract sued upon was made, was a complete defense to a suit, either before or after her coverture, unless the facts were shown which are requisite to the maintenance of an action under section 1987. One of those requisites is the existence of a separate estate, which must be made separate by law, not an estate .“which, independent of legislation, would have been separate by operation of the instrument or contract creating it.” The deed from Dawson, introduced for the purpose of showing that the defendant had a separate estate, by its terms creates what would, at common law, and independent of legislation, be recognized as a separate estate in a married woman. It follows, that there was a failure to show the kind of separate estate, which is an indispensable requisite to the maintenance of the action. We ¡lerceive that this point must be decisive of the case against the appellant, and therefore waive the consideration of the other questions which were argued by the counsel.

The judgment of the court below is reversed, and the cause remanded.  