Unger v. Price

Mason, J., delivered the opinion of this court. In December 1854, Frederick Unger, one of the appellants, conveyed all his real estate to Adam Shank, in trust for his creditors, in which conveyance his wife Elizabeth did not join. Afterwards, Shank, the trustee, sold the real estate to Lyr day, and Lyday being anxious to disincumber the estate of the contingent dower right of the wifej agreed with and did purchase of Mrs. Unger her potential right of dower in the land, for the sum of $500, and Mrs. Unger, together with her husband, made to Lyday a deed in order to extinguish the dower right. The purchase of the potential dower estate, and the payment of $300 in cash thereon by Lyday, occurred in the latter part of February 1855, the said purchase money being paid directly into the hands of Mrs. Unger.

The evidence tended further to. show, that with the money thus acquired the wife purchased the property now in controversy, in her name and for her use. Subsequently, the appellee levied upon the same to satisfy an execution against the husband, and hence this action. The cases cited and relied upon by the appellee’s counsel, arose under the law as it existed prior to the act of 1853, ch. 245, . That act has materially modified the law as to (he rights of the husband, oyer the property of his wife.

As the law ⁵⁵⁸ previously stood even, we have no doubt that it would have been competent for the wife, with the assent of her husband, and through the instrumentality of a trustee, to have converted her contingent or potential right of dower into money or other available property, for her sole and separate use, and such a design would not have been affected by the circumstance that the husband had creditors at the time, for the obvious reason that such a separate estate would be derived from a source to which the creditors had no right to look for payment of their debts. 1 Story’s Eq., sec. 367. Hoot vs. Sorrell, 11 Ala. Rep., 386 . The third section of the act of 1853 authorises the wife to hold property, to her sole and separate use, without the interposition of a trustee, and