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her, and voluntarily signed, in the absence of all undue influence so far as the proof discloses.
The question raised upon the demurrer, to wit, that the legal remedy should have been exhausted against the husband before the complainants could resort to equity, we think, was very properly ruled by the chancellor. If there is a remedy in equity against the wife, it exists, independent of the legal remedy against the husband, and may be resorted to at any time. The rule which forbids a resort to equity to subject the equitable estate of a debtor to the payment of a judgment, or a simple contract debt, before exhausting the legal remedy, has no application to cases like this, where the equitable relief, if it exists at all, is independent of the remedy at law. The first move, as against the wife, upon the bond must necessarily be in a court of equity, and her engagement, so far as the remedy of the creditor is concerned, is as distinct from her husband, as if she had executed & separate obligation to pay.
The main question in the case is, whether the separate estate of the wife can be subjected to the payment of a note executed by her as security for her husband, and on account of which she received no other consideration. I have carefully examined the ingenious and able argument of the counsel for the plaintiffs in error, in which he depicts the gross frauds and abuses to which it may subject married women (who are supposed to be under the power and influence of their husbands), to hold that they may have the provision, made for the support of themselves and children, swept away from them to pay the husband's debts, because they have gone on his paper, and this, too, when by the terms of the settlement, such provision is expressly exempted from the payment of his debts, and, indeed, is usually designed to provide against his improvidence, and to place the property entirely beyond his control. Perhaps, if the question were res integra, and the courts were called upon to strike out a line of decision, it would better comport with the analogies of the law, and more frequently subserve the purposes of justice, to hold, that in cases where no one was appointed to manage the estate, and the husband, consequently, must be regarded as the trustee for the wife, all engagements made by her, through his instrumentality, to bind her separate estate for the payment of his debts, should be decreed absolutely void, and incapable of being enforced in any court against her consent. But we take it, the law is settled otherwise by a long train of decisions, from which we do not feel at liberty, if we were so disposed, to depart.
Judge Story states the doctrine maintained by courts of equity upon this subject to be-first, that her separate property is not in equity liable for the payment of her general debts, or for her general personal engagements, in the absence of any act on her part to charge the same upon such separate estate; secondly, that her separate estate will be liable for all the debts, charges, incumbrances, and other engagements which she does, expressly or by implication, charge thereon: 2 Story's Eq. Jur., secs. 1398, 1399; thirdly, “the fact that the debt has been contracted during the coverture, either as a principal or as a surety, for herself or for her husband, or jointly with him, seems ordinarily to be held prima facie evidence to charge her separate estate, without any proof of a positive agreement to do so: Id., sec. 1400.
The lord chancellor (Thurlow), in Ilulme v. Tenant, 1 Bro. C. C. 16, deduced the intention of the wife to bind her separate estate from the fact that she executed jointly with her husband
bond for fifty pounds borrowed by him, and which, upon borrowing an additional sum on her own account, she afterwards renewed, embracing the whole amount in a bond executed by herself alone. This case has been doubted by Lord Eldon, Nantes v. Corrock, 9 Ves. 188; and Jones v. Harris, Id. 497; but Mr. Roper thinks that Lord Thurlow could not have made any other decree than that which was pronounced: 2 Roper's H. & W. 241. He says, moreover, that it has been followed by subsequent cases, citing Heatley v. Thomas, 15 Ves. 596, where the wife's bond was held to create a charge upon her separate estate; also Bullpin v. Clarke, 17 Ves. 365, and Stewart v. Kirkwall, 3 Madd. 387, where the same principle of decision was held in respect to her promissory notes. “These cases,
" says he, “may be considered as establishing, that the separate estate of a married woman is liable to debts for which she has given a written security:" 2 Roper's H. & W. 241, note A; Stanford v. Marshall, 2 Atk. 68; see also 1 Bro. C. C. (by Perkins), 14, note 1; Gardner v. Gardner, 22 Wend. 526, 528 (34 Am. Dec. 340]; Coats v. Robinson, 10 Mo. 757. “It is," says Chancellor Kent, “ sufficient that there is an intention to charge her separate estate, and the contracting of a debt by her during coverture is a presumption of that intention; and the later decisions hold her separate estate responsible without showing any promise. Her contract amounts to an appointment:" 2 Kent's Com. 164.
But it is said that in marriage settlements, designed usually to secure to the wife a certain support, and to provide against
her being overwhelmed by the misfortunes, unkindness, or vices of her husband, courts of chancery, endeavoring to carry out the true intent and design of them, consider the wife, in respect to her separate estate thus settled, as a feme sole, sub modo only, or to the extent of the power clearly conferred upon her by the marriage settlement: 2 Kent's Com. 165. Giving this principle its full application to the case before us, and still it does not aid the plaintiffs in error, since the marriage settlement before us expressly confers the power on the wife to control the property, as though the marriage had not taken place. It would be difficult to find language conferring upon the wife a more unlimited dominion over the property; she may use it or control it as though she were sole, and as it would have been subject to her appointment, had she continued sole, so it is now. As to the wife's power of disposing of her separate property, etc., see an able note in which the authorities are collated: 2 Kent's Com., 6th ed., 164, note b, and cases cited in note 2, p. 166.
In cases of this nature the main argument, says Judge Story, is that the security must be supposed to have been executed with the intention that it should operate in some way; and that it can have no operation except as against her separate estate. It may well become a question whether the circumstances of this case do not show, aside from the mere wording of the agreement, that it was the intention of the wife to charge her estate. In the first place, the husband was insolvent, and this fact is entitled to some weight in determining whether, at the time she became bound, she did not expect to have the demand to pay, and whether she did not contract in view to a settlement of it out of her separate estate, the only means she possessed for its payment. In the second place, she became bound jointly with her husband, signing the bond without reading it or inquiring for its contents, thus showing an indifference as to its provisions, whether it amounted to a general promise to pay or a specific appointment of her separate estate for its satisfaction; an indifference hardly reconcilable with the idea that her estate was not intended to be looked to for the satisfaction of the demand. Be this as it may be, when we look to the plain wording of the instrument, against which, at most, there is but the merest suspicion of combination or unfairness, we feel constrained to hold that the debt is properly chargeable upon the separate estate of Mrs. Bradford.
But it is contended that the established American doctrine is, that the wife has no power by law to contract, and the deed,
under which she holds the property, must confer on her the power to sell or charge her estate, else, she has no such power. Many cases may be found, and a goodly number have been cited, showing, that when in the deed of settlement the power of disposition is conferred, to be exercised in a particular way, that mode of disposition must be observed, but I apprehend the courts have not gone to the length of holding, that the manner of disposition must necessarily be specified in the deed of settlement, in order to the existence of the power. The law, which does not favor a restraint upon the alienation especially of personal property, annexes this power as necessarily resulting from “the complete control ” and ownership of the property by the wife, the power being reserved to her in the deed to control it, as though the marriage had never taken place. So that conceding that the wife derives no power from the law, but only from the deed, to dispose of her estate, we think the deed in this case gives it, not, it is true, in direct terms, but by necessary infer
She is to be regarded as a feme sole in respect to it, and, therefore, may charge it by her contract, although she can not personally charge herself: Jaques v. Methodist Episcopal Church, 17 Johns. 548 (Spencer, C. J., 576) (8 Am. Dec. 447], and cases cited. We hold, that where a married woman has property settled upon her to her separate use, and the deed of settlement provides that she shall have “the complete control of it as though the marriage had never taken place,” and contains no restraint on alienation, she is to be deemed in a court of equity, with respect to such property, as a feme sole, and may, by her agreement
, freely entered into, charge it for the payment of her husband's debts. This is the case before us, and beyond this, we need not go. To hold otherwise in this case, we should feel that we had violated the true intent and meaning of this contract of settlement, as it is manifest the wife designed to retain the same power and dominion over her estate embraced in the settlement after the solemnization of the intended marriage, as she possessed previous thereto, and at the time of entering into the contract. The English cases go quite beyond this, and in my opinion fully sustain the court of errors in the conclusion attained in the case of Jaques v. Methodist Episcopal Church, supra; 1 Sugd. on Powers, 208.
We deem it unnecessary to comment upon the various cases cited, and which we have examined, as in our opinion, the facts of this case take it without the influence of them, unless indeed we are prepared to go with the courts of equity in South Caro
lina, and hold “ that the wife can not, by her own act merely, charge her separate estate, but the court will look to the circumstances, and determine whether a proper case exists, even though the appropriation was by herself for the necessary support of herself and family: Magwood v. Johnston, 1 Hill Ch. (S. O.) 236, cited, 2 Kent's Com., 6th ed., note a, p. 164; Ewingv. Smith, 3 Desau. Eq. 417 [5 Am. Dec. 557). Such is not the doctrine which has obtained in this state: Forrest et al. v. Robinson, 4 Port. 44; Sadler and Wife v. Houston and Gillespie, Id. 208; Hoot et al. v. Sorrell, 11 Ala. 386; in which last case many of the cases are cited, sustaining the view here taken.
As the wife in this case is entitled to the absolute property in the slaves sought to be subjected, and their hire could not within any reasonable time satisfy the demand, we think the chancellor correctly decreed that, unless the debt was paid by & given time, the property should be sold to an amount sufficient to satisfy the demand.
Our conclusion upon the whole case is, that the decree of the chancellor must be affirmed.
LEGAL REMEDY No BAR TO EQUITABLE RELIEF, WHEN: See McCrea v. Purmort, 30 Am. Dec. 103; App v. Dreisbach, 21 Id. 447.
SEPARATE PROPERTY OF FEME COVERT, AS TO WHICH EQUITY CONSIDERS HER FEME SOLE: See Butler v, Buckingham, 5 Am. Dec. 174; Ewing v. Smith, Id. 557, and note, where the subject of the liability of a married woman, in connection with the instrument creating her separate estate, is elaborately discussed.
CONNER ET AL. v. BANKS.
(18 ALABAMA, 42.) VENDOR OF REAL ESTATE HOLDS LEGAL TITLE AS SECURITY FOR PAYMENT
OF PURCHASE MONEY, where he has given no deed to the purchaser. WHERE VENDOR OF REAL ESTATE EXECUTES BOND TO MAKE TITLE, the
contract will be considered in a court of equity as in the nature of a con
veyance to the purchaser, and a reconveyance back by way of mortgage. BY TRANSFER OF NOTE GIVEN FOR PURCHASE PRICE OF REAL ESTATR
the lien which the vendor has upon the land passes with it, as the note
is the principal, and the lien is but an incident to secure its payment. EXTENDING TIME OF PAYMENT OF Note given for the purchase price of real
estate by taking a new note in its stead does not destroy the lien which the holder has upon the land for its payment. The opinion states the facts. P. T. Sayre, for the plaintiffs.
AX. Dro. Vol. LII-14