Wright v. Strauss & Co.

BRICKELL, C. J.

— 1. The sale was complete within this State, though in pursuance of instruction the goods were sent to the domicil of the husband and wife in Tennessee. The title to the goods passed by the sale; and the risk of accidents in the course of transportation to the domicil of the buyers was their risk, and not that of the sellers.

Every contract for articles of comfort and support of the household, suitable to the degree and condition in life of the family, of itself, by force of the statute, creates for. its payment a prima facie liability upon the statutory' separate estate of the wife; as by the common law the contract of the wife,during cohabitation, for necessaries imposes a prima facie liability upon the husband. — Mitchell v. Dillard, 57 Ala. 317. If there be facts or circumstances which would repel the presumption of liability, in either case, the burden of proving them rests upon the party asserting'their existence. — Mitchell v. Dillard. supra. The contract being complete within this State, there is no room for the operation of the statute of limitations of Tennessee. The general rule of the common law was that, as to personal contracts, statutes of limitations were directed against the remedy, and did not affect the validity of-the contract. Therefore, if a contract was made in one State, and was there to be performed, and remedies for its enforcement were pursued in another State, the statute of limitations of the place of suit would govern, though the statute of the State in which the contract was made, and was to be performed, had operated a bar. — Jones v. Jones, 18 Ala. 248. The Code changes this rule of the common law to this extent, that if a contract was made -or an act done in another State, of which the party to be charged is a resident, and of which he continues a resident, until by the law of the State an action is barred, the bar shall be applied to an action in this State, founded on the contract, or for the doing of the act. — Code of 1876, § 3237. The statute has reference only to .contracts made, or to acts done in another State, and can not.be extended to contracts made within this State, though at the time of making the contract, and continuously to the institution of the suit, the party to be charged had his domicil in another State. — Minniece v. Jeter, 65 Ala. 222.

2. The remedy for the enforcement of a contract for articles of comfort and support of the household, when the purpose is to subject the statutory separate estate of the wife, is prescribed by the statute. It is an action at law against the husband alone, or against the husband and wife jointly. If the action is against the husband only, and judgment is obtained, upon which an execution is returned not satisfied, the court in which the judgment is rendered, may, on motion, of which the wife had notice, order her separate' estate to be sold for the satisfaction of the *234 judgment. The notice of the motion may be given by publication, if the wife resides out of tlie State. When the suit is against husband and wife jointly, if either or both of them reside out of the State, notice may be given by publication. Code of 1876, §§ 2711-12. The judgment which is rendered against the husband is personal; while that which is rendered as to the wife is not personal. Whether it is rendered in the joint suit against her and the husband, or after judgment against him when, sued alone, on motion to the coiu't, it is a judgment in rem — a judgment of condemnation of her statutory estate, affecting and binding only the property mentioned in it, and not other property, though it may form part of tlie estate subject to the statutory liability. — Ravisies v. Stoddart, 32 Ala. 599. It is insisted that as the appellants were subject to suit by publication, and that the suit is, as to the wife, a proceeding in rem, their continuous residence in another State will not prevent the statute of limitations of this State from operating a bar. We can not yield assent to the proposition. The uniform construction of the statute of limitations has been, that it is only personal presence within the State, subjecting the party to the personal service of process, which will put in operation, or keep the statute alive. — Smith v. Bond, 8 Ala. 388; State Bank v. Seawell, 18 Ala. 616; Crocker v. Clements, 23 Ala. 296; Huss v. Central Railroad and Banking Company, 66 Ala. 472. The saving of the statute is confined in its terms to the personal absence from the State of tlie party sued or liable to suit. Code of 1876, § 3234. In this respect it differs from the statutes of some of the other States, the savings of which do not extend to parties absent, yet having property within the State. The existence of property in the State, which may be reached by attachment, or by other extraordinary process, or the éxistence of statutes authorizing the commencement of suit by constructive notice, can not enlarge the statutory exception. The savings or exceptions of the statute can not be enlarged or narrowed by implication or intendment. — Harwell v. Steele, 17 Ala. 372. Non-residents of the State have been snbject to suit in equity by publication for a long period. It has never been supposed that when sued, they could invoke the bar of the statute of limitations, as if they were and had been resident citizens of the State, claiming exemption from the saving of the statute because of residence without the State.

3. The purpose of the statute in fixing affability upon tlie statutory estate of the wife for articles of comfort and support of the household, as has been often said in this court, is to secure to the wife and children necessaries suitable to their condition in life, though the husband may not be of ability to furnish them. It is for the family collectively, as composed of wife *235 and children legally dependent upon the husband for support and maintenance, the statute intends making provision. — Durden v. McWilliams, 31 Ala. 438; Eskridge v. Ditmars, 51 Ala. 245. The temporary absence of the children in minority from the home of the father and mother does not change their condition of legal dependence — does not lessen the duty to maintain them devolved by the common law upon the father,- or the statutory liability of the estate of the mother correspondent to, and co-extensive with the common law duty of the father. The temporary absence works no change whatever in the relations of the children — they continue members of the family, and owe to the parents the same duties which are owing while in person present with them under the same roof. Such of the goods as were purchased by the parents, and supplied to their minor children absent from home at school, were as essentially applied to the uses of the family, as if they had been supplied to the children at home. F<^ such purchases, the estate of the wife is liable to the sam "extent, that it would have been liable, if the children had been at home.

The judgment of the circuit court is affirmed.