
    Bruce v. Bruce.
    
      Statutory Detinue for Oattle.
    
    1. When action lien by wife against husband. — Under the statutory provisions now of force (Code, §§ 2341-51), the wife may maintain an action against the husband for the recovery of personal property which she acquired by gift from him prior to the passage of those statutes.
    2. Charge as to sufficiency of evidence. — A charge instructing* the jury that it is incumbent on the plaintiff to prove that the property sued for belonged to him when the suit was brought, and that the defendant had no title or interest in it, and no right to detain it, is properly refused.
    3. J£sto¡>¡>el against wife. — It the husband, on a voluntary separation between him and his wife, allows her to take some of his cattle, intending it as a settlement of her claim to some of them, this does not estop her from afterwards claiming others which belonged to her; unless she consented to so take them.
    
      Appeal from tbe Circuit Court of Conecub.
    Tried before tbe Hon. John P. Hubbabd.
    Tbis action was brought by Eliza Bruce against ber bus-band, Stephen Bruce, to recover four bead of cattle, and was commenced on tbe 26th August, 1889. Tbe _ parties were formerly slaves, and were married after emancipation ; and they lived together until February, 1887, when-they separated. Tbe cattle were bought before their separation, one from a Mr. Hammond, and the mother of tbe others from Mr. Ingram ; and each party claimed to have furnished tbe money to pay for them. Tbe plaintiff testified that tbe money was partly tbe wages of ber son by a former husband, and tbe balance was tbe proceeds of the sale of cotton which her husband allowed ber to raise on a “patch” of ber own. The evidence showed, also, that when tbe parties separated, the defendant told bis wife to go to tbe pen and pick out what cattle she wanted, and she did so ; but these were not tbe cattle sued for. Tbe defendant pleaded now detinet, and tbe plaintiff’s coverture; and tbe plaintiff replied to tbe latter plea, that tbe cattle belonged to ber separate estate, after demurrer overruled to tbe plea.
    Tbe court charged tbe jury as follows : “If tbe jury are reasonably satisfied from the evidence that the plaintiff bought the cattle from Howard and Ingram, and that they sold tbe cattle to ber, and that she paid for them, either with ber own money, or with money which she received as tbe proceeds of ber own labor ; and that ber husband gave ber ber own labor, or tbe proceeds thereof; and that the cattle sued for are tbe increase of tbe cattle so bought, then she has such a right to them as will enable ber to maintain tbis suit, and she will be entitled to recover, if in other respects she has made out ber case.”
    Tbe defendant excepted to tbis charge, and also to tbe refusal of each of tbe following charges, which were asked by him in writing : (1.) “It is incumbent on the plaintiff to
    prove to tbe satisfaction of tbe jury that tbe cattle sued for belonged to ber when tbe suit was brought, and that tbe defendant bad no title or interest in them, and no right to detain them.” (8.) “If tbe jury are satisfied by tbe evidence that the plaintiff is a married woman, and was at tbe time she brought tbis suit, then she can not maintain tbe suit as it is here brought.” (4.) “If tbe proof satisfies tbe jury that plaintiff and defendant are husband and wife, and were at tbe commencement of tbis suit, although not living-together, they should find for defendant.” (6.) “If tbe proof reasonably satisfies tbe jury that, after February 28th, 1887, tbe cows wbicb bad been previously divided between tbe parties want back to defendant’s, and that plaintiff went or sent to bim for them, and 'defendant intended tbis as a settlement of tbe division of tbe property, tbis would estop plaintiff from bringing tbis suit, and tbeir verdict should be lor tbe defendant.”
    Stallworth & Burnett, for appellant.
    Bowles & Babb, contra.
    
   WALKEB, J.

Tbe statute provides, in general terms, that tbe wife must sue alone for tbe recovery of ber separate property. — Code of Ala., § 2347. Tbe language is broad enough to include a suit by ber against ber husband. Tbe conclusion that tbe wife may now sue ber husband at law is supported by other provisions of tbe “Married Woman’s Statute.” Important contract and property rights of tbe wife, for tbe enforcement of wbicb the statute requires ber to sue alone, are so far without tbe influence of tbe marital relation that they may as well be violated by tbe husband as by any stranger. Tbe earnings of tbe wife are ber separate property : she has tbe control and management of her separate estate, and is entitled to tbe rents, income and profits; she may contract with ber husband; if be is living apart from ber, without fault upon ber part, or if be be of unsound mind, she may convey or dispose of ber real or personal property in any manner as if she were sole; and, without tbe consent of ber husband, if be is of unsound mind, of has abandoned ber, or is a non-resident of tbe State, or is imprisoned under conviction for crime, she may enter into and pursue any lawful trade or business, as if she were sole.- — Code, §§ 2341-2350. Her husband, like any other person, may unlawfully deprive ber of ber separate estate, or become liable on a contract with ber. Tbe statute certainly establishes a rule wbicb, as to tbe classes of cases covered by its provisions, operates to remove tbe common-law disability of tbe wife to sue alone. Suits against tbe husband are not, in terms or by implication, excepted from tbe operation of tbe statute. It is provided, in general terms, that tbe remedy for tbe enforcement of certain rights of tbe wife is by suit in ber name alone. Some at least of •those rights exist in ber favor as against ber husband. There is nothing in tbe statute to show that tbe existence of tbe marital relation affects or impairs tbe remedy for tbeir enforcement. Our conclusion is, that if tbe suit is one wbicb tbe statute requires to be brought in tbe name of tbe wife alone, it may be prosecuted against ber busband, if be is tbe party responsible for tbe violation of tbe right to be vindicated by tbe suit. Tbe effect of tbe statute is, that tbe legal rights of tbe wife as against ber busband may be enforced by legal remedies. Tbe demurrers to tbe pleas of coverture were properly sustained; and charges 3 and 4 requested by tbe defendant were properly refused.

Prior to the present statute, property purchased by tbe wife with ber own money, or with money wbicb she earned, and wbicb ber busband permitted ber to retain, was, as between herself and ber busband, ber separate estate. — Carter v. Worthington, 82 Ala. 334; Bush v. Henry, 85 Ala. 605. When tbe rights of creditors are not involved, it is immaterial to inquire whether it belongs to ber statutory separate estate or to ber equitable separate estate; for, with a single exception not now necessary to be mentioned, tbe distinction between tbe two classes of estates has been abrogated, and property acquired by tbe wife by gift from, or contract with ber busband, is ber separate property within tbe meaning of tbe present statute, -and may be recovered in an action at law in ber own name. — Code, §§ 2347, 2351; Rooney v. Michael, 84 Ala. 585. Tbe rights of tbe busband, as trustee of tbe wife’s statutory separate estate, were created by statute, and could be taken away in like manner. Mem. & C. R. Co. v. Bynum, 92 Ala. 335; Ramage v. Towles, 85 Ala. 589. As to ber equitable separate estate, if not limited or restrained by tbe instrument creating it, in a court of equity tbe wife was regarded as a femme sole, and could bind or charge tbe estate by any contract wbicb would bind ber if sole. — 3 Brick. Dig. 548, § 85. Tbe statute gives legal recognition to such estates, and authorizes tbe pursuit of legal remedies for tlieir protection. No constitutional right of tbe busband is affected by a statute giving tbe wife a standing in a legal forum in reference to property wbicb, under tbe rules enforced by courts of equity, she could already deal with as if she were sole. As to neither of tbe two classes of estates does tbe statute purport to have any such retrospective operation as to impair any vested right of tbe busband. He has no right to complain that tbe remedies in favor of the wife for tbe protection of ber separate property are changed and enlarged. Tbe wife alone may now sue for tbe recovery of ber separate property, whether, before tbe enactment of tbe statute now in force, it belonged to ber statutory or to ber equitable separate estate. There was evidence tending to show tbe state of facts hypothesized in the part of the general charge to which an exception was reserved. The proposition there asserted was correct under the rules above stated.

If the plaintiff offers evidence to support a state of facts on which he is entitled to recover, it is not incumbent upon him to go further and show affirmatively that the defendant has no defense. Charge one requested by the defendant was incorrect, in putting upon the plaintiff the burden of proving more than was required to entitle her to a recovery.

The plaintiff and the defendant had been living apart for several years. There was evidence tending to show that, when they separated, the defendant gave certain cattle to the plaintiff. The mere fact that the defendant intended this as a settlement of the plaintiff’s claim could not affect her title to property which already belonged to her, and which she did not consent to give up. Plaintiff’s acceptance of the defendant’s gift to her did not estop her from claiming what was already her property. Charge six requested by the defendant was properly refused.

Affirmed.  