#### Cook *v.*Cook.

*Statutory Action of Ejectment.*

1. *Wife can maintain ejectment against Jiushancl.*— Under the statutory provisions as they now exist, the wife can maintain an action of ejectment against her husband for lands to “which she holds the legal title separate and apart from her husband;” and as to the maintenance of such a suit, it is of no consequence that the premises sued for were at one time occupied by the husband and wife with their children as a homestead, or that the husband and children still reside thereon, or that the husband was, at the time of the trial and had been, willing for the wife to return to the homestead and occupy it jointly with him.

Appeal from, the Circuit Court of Madison.

Tried, ‘before tbe Hon. H. C. Speake.

This was a statutory action of ejectment, brought by tbe appellee, Hassie M. Cook, against tbe appellant, Isaac M. Cook, to recover a certain lot in tbe town of Newmarket, Madison county, Alabama, which was specifically described in tbe complaint. Upon issue joined upon tbe plea of tbe general issue, tbe plaintiff offered in evidence a deed bearing date August 6, 1888, which was properly executed, 'and conveyed the legal title to tbe premises sued for. It was further shown that at the time of the trial the defendant was in tbe actual possession of tbe bouse and lot involved in tbe suit and bad refused to surrender possession thereof upon demand of plaintiff. Tbe evidence for tbe defendant showed that at tbe time of tbe institution of tbe suit and for a longtime prior thereto, the plaintiff was the wife of the defendant ; that the house and lot sued for bad been jointly ■occupied by tbe plaintiff and the defendant with their children as a homestead for many years before tbe institution of tbe suit; that about one year prior to the bringing of tbe suit a difference arose between tbe plaintiff and tbe defendant, and tbe plaintiff went to reside with *584her sister who lived a short distance from the house formerly occupied by her, and demanded of the defendant that he should vacate the house and lot and turn over the possession of the house to her; that the defendant refused to do this, hut offered no objection to the plaintiff’s re-entry into the premises when she so desired and to occupy it jointly with him. It was further shown by the evidence of the defendant that the house and lot was the homestead of the family of the plaintiff and the defendant and that neither the plaintiff nor the defendant had any other homestead. This was substantially all of the evidence introduced on the trial.

The court, at the request of the plaintiff, gave the general affirmative charge in her behalf, and refused to give the general affirmative charge requested by the defendant. To each of these ruling’s the defendant separately excepted. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the giving of the general affirmative charge requested ¡by the plaintiff, and the refusal to give the general affirmative charge requested by the defendant.

James H. Branch, for appellant,

cited, *£itrouse v.*■ *Leipf,*101 Alá. 433; *Ashforcl v. Watkins,*70 Ala. 156; *Hanberry v.*Hanberry, 29 Ala. 718.

Tancard Betts and W. F. Esseinger, *contra,*

cited *M. & C. R. R. Co. v. Bynum,*92 Ala. 335; *Bruce v. Bruce,*95 Ala. 563; *Rollvns v. Rollins,*98 Ala. 79; *Larkin v. Baty,*111 Ala. 303.

McCLELLAN, C. J.

That a wife must sue alone for the recovery of her separate property is expressly provided by statute. — Code, § 2527. That she may sue her husband for the recovery of personal properly belonging •to her has been expressly *decided.*— Bruce *v. Bruce,*95 Ala. 563. The right to sue her husband to recover from him possession of her realty rests upon the same statutory provision and the same principles declared in the case cited as to her personalty, and can no more be denied in respect of one class of property than in respect *585of the other. Nor is it of consequence that the land of which recovery is sought was at one time occupied by the husband and wife 'with their children as a homestead, nor that the husband and children still reside thereon, nor that the defendant at the time of trial is willing and all along has been for the wife to return to this homestead and occupy it jointly with him. He has no right to compel her to let him into joint possession or occupation of any of her land, nor any right to exclude her from the possession and occupation altogether, unless she assents to joint possession and occupation with him. There is no law to compel a wife to live with her husband on her land or on his. There is no- legal prohibition upon her separating from him and living apart. And having separated from him and left her home in his possession, she is entitled to recover it from him as if he were a stranger. To hold otherwise would be to give the husband rights and estates in the wife’s lands which our statutes not only do not provide for-but expressly provide against. This is the view taken by the trial court. Upon it the affirmative charge was properly given for the plaintiff, and the judgment must be affirmed.

Affirmed.