M. M. Withers, Exr'x v. . T. W. Sparrow and Wife

BoydeN, J. This was an original bill in equity, decided in the Court below, and an appeal taken by the defendant to this Court. The object of the bill was to subject the separate estate of the feme defendant, to the payment of a sum of money, ■alleged to have been borrowed by the wife, with the assent of her trustee, upon the credit and for the improvement of her separate estate. There was some conflict in the evidence in regard to the loan of the money by plaintiff’s intestate to the feme defendant, and to enlighten the conscience of the Court, upon this matter, the following issue was submitted to a jury, to-wit: ^Was the debt in the pleadings described, contracted on the pa-rt oí T. W. Sparrow and wife M. L. Sparrow, with the plaintiff’s intestate, based on the credit of the trust estate of the feme defendant, with the consent of the trustee, James B£ Hutchison f ’ Upon the trial of the above issue, His Hon- *137 or gave the following instructions to the jury, to-wit: “That before the jury could find the issue in favor of the plaintiff, she must satisfy them by a preponderance of evidence : First. That at the time of the contract, the credit was given to the wife. Second. That the trustee assented to the contract. • Third. That the wife expressly contracted on the credit of her separate property, and that before she could have a verdict-in her favor, the jury must find that the money was loaned for the purpose, and with the assent of the wife and her trustee, and actually invested in improvements on the trust estate.” Upon this issue, with the above instructions, the jury found in favor of the plaintiff, as to the note for nine hundred and ninety-six dollars and thirty-six cents. The separate estate of the feme defendant was settled upon her, in South Carolina; her original trustee residing in that State. The feme defendant and her husband removed a portion of the funds of the feme covert to North Carolina, and petitioned the Court of Equity for the county of Mecklenburg, for the appointment of a trustee, for the feme, which was ordered, and the defendant, James M. Hutchison was appointed, and accepted the trust. The defendants afterwards filed their petition in the same Court of Equity, praying for an order to permit the trustee of the feme petitioner to invest a portion of the funds of her separate estate, in lands situated in Iredell and Mecklenburg counties, and a decree was made to that effect; the lands accordingly were purchased with the trust funds, and the Court further ordered, that the sum of fifteen hundred dollars of the trust funds might be expended in improving the lands at Davidson College, so as aforesaid, purchased. That after this decree, the feme defendant, with the assent of her trustee, James M. Hutchison,.borrowed of the plaintiff’s intestate the money now in controversy, and expended the same, in permanent improvements on the land at David- *138 «on College, and the feme defendant and her family are now in the occupation and enjoyment of these improvements, which are estimated to be worth more than three thousand dollars. Upon this state of facts, Ilis Honor below, declared the separate estate of the feme, liable, for the payment of the money thus borrowed and expended, and ordered a sale thereof, unless, before a day fixed in said decree, the money should be paid by the defendants. The question for this Court is, “shall this decree of His Honor below stand, or shall it be reversed for error in subjecting the separate state of the feme defendant, to the payment of the debts, due plaintiff’s intestate ?” The law in such a case, in regard to such a settlement made in our State, must be taken as settled. In the case of Draper Knox & Co. v. Jordan, 5 Jones' Equity, 175, His Honor, Judge Manly, in delivering the opinion of the Court, in that case says: “We recognize as settled law, the principle upon which the case of Frazier v. .Brovmlow stands, viz: that, a wife may, when not restrained by the deed of settlement, with the concurrence of the trustee, specifically [charge her separate estate, with her contracts and engagements.” But the Court in that case seemed unwilling to sanction the doctrine, that as to the separate estate of the wife, she was to be regarded as a feme sole in all respects, as held in England and also in the State of New York. But however proper, this unwillingness of the Court to recognize that doctrine, might have been at the time of that decision, there can be no reason since the adoption of our present Constitution, why the English and New York doctrine should not now be followed in our State. It seems to be a general rule, that marriage contracts and settlements, as well as other contracts, are governed by the lex'loci contractus. Mr. Chief Justice Parker, in the case of Blanchard v. Russell, 13 Mass. Rep., 134, remarks that, “the laws of any State cannot, by any inherent authority, be entitled to respect, extra-territorially, or beyond the jurisdiction of the State that en *139 acts them, is the necessary result of the independence of distinct sovereignties. But that the courtesy, comity, or mutual convenience of nations, amongst which, commerce has introduced so great an intercourse, has sanctioned the admission and operation of foreign laws, relative to contracts.” So that it is now a principle generally received, that contracts are to be governed by the laws of the State, in which they are made. ’ This we consider the settled law of our State, and we hold that at least so far as the limitations of the estate are concerned, the lex loci contractus must prevail. The settlement by its terms, limited the estate to the wife for life, and then over to such children as she might leave surviving, at her death. There were no words in the settlement denying to the feme, the right to charge her estate, but it is said that the decisions of the Courts in South Carolina are to the effect, that under such a contract the wife cannot charge her estate. But however that may be, it is not necessary for this Court to decide ; as this case turns upon altogether a different question. And that is this : the husband'and wife and her trustee, file their petition in the Court of Equity for the county, of Mecklenburg, praying for a decree allowing a trustee to purchase and to invest a portion of the trust funds, in real estate in Iredell and Mecklenburg counties, and to expend thereon, in permanent improvements, $1,500. ’ The trustee not having the money in hand of the trust estate, to make the improvements, the feme defendant and her husband, with the concurrence of the trustee, borrowed the money to make the improvements authorized by the decree, and actually expended the same in erecting buildings, and other improvements estimated to be worth much more than the sum allowed to be expended, and all of which are now in the occupation and enjoyment of the feme defendant and her family, so the question is, shall her separate estate* to-wit: her life estate therein be held liable for the money thus borrowed and expended. It would seem that the bare statement of the case, without refer *140 ence to authorities, would be sufficient, for an affirmative answer. The law in this regard in our State, we consider fully settled by the authorities cited. No one could doubt, that under the decree, if the trustee had happened to have had the money in hand of the trust estate, the expenditure would have been a proper one. Upon what principle, then can it be contended that the plaintiff’s intestate, who had loaned the fund thus to be expended, and when the jury had found, not only, that the funds had been borrowed, but actually expended as allowed, should not be paid out of the feints estate % We think, that, by the principles and rules of equity, not only as administered in our State, but as far as we are aware in South Carolina, and in every other country where our noble system of equity prevails, the estate of the feme would be held liable, for the payment of a debt, in a like case. The decision of His Honor below, declaring the separate estate of the feme bound for the payment of the debt, is affirmed, but the decree must be modified, so as only to subject the life estate of the feme, to sale. This will be certified, that the decree below may be modified, in accordance with this opinion.