Flaum v. Wallace Bros.

Shepherd, J. For the first time, we believe, in this State, is the important question presented, whether a married woman may, with the written consent of her husband, *304 expressly charge her statutory separate estate by an engagement in the nature of an executory contract, where the consideration is not for her benefit, or for the benefit of the estate. As the writing relied upon by the defendants in this case relates only to money, our decision is applicable to the separate personal estate alone. It is well established, except in the cases mentioned in The Code, §§ 1828, 1831, 1832, 1836. that “at law a. feme covert is incapable of making a contract of any sort, and any attempt of hers to do so is not simply voidable, but absolutely void. If, however, she be possessed of separate property, a court of equity will so far recognize her agreement as to make it a charge thereon. But even in that case, and in that court, her contract has no force whatever as a personal obligation or undertaking on her part. * * * Nor was there any change wrought in this particular by the alterations made in our court system under the Constitution of 1868, or by the adoption of the statute known as married woman’s act. It was in reference to those very alterations,, and the effect of the statute, that the Court declared in Pippen v. Wesson, 74 N. C., 437; Huntley v. Whitner, 77 N. C., 392,. that no deviation from the common low had been produced thereby as respects either the power of a feme covert to contract, in the nature of her contract, or the remedy to enforce it; that as a contract remedy her promi.-e is still as void as it ever was,, with no power in any court to proceed to judgment against, her in personam.” Dougherty v. Sprinkle, 88 N. C., 300. The limits, imposed by the Constitution and statute, show clearly, says Rodman, J., in Pippen v. Wesson, supra, “ that the separate estate given (by the Constitution) was such as-it had previously been defined to be, to which neither an absolute power of disposition, nor the general power to contract, were necessary incidents. The statute was intended to take the place of a deed of settlement, and must be construed as such deeds had been, as conferring, on married *305 women no powers beyond those expressly given or implied. * * * The draughtsman evidently had in mind the existing law above slated, that no married woman could make any personal contract, but only one to affect or charge separate estate ; the object was to require the consent of the husband in lieu of the consent of the trustee, which the law required when the separate estate was created by a deed of settlement. * * * The meaning was not that a married woman may make contracts which, by existing law, she had no power to make, but that she shall not make such contracts as by existing law she had power to make, without the consent of her husband. The intent was not to enlarge her special power by requiring the husband’s consent.” This restrictive interpretation of the Constitution and statute, and the assimilation of the statutory to the equitable separate estate, in respect to the incurring of liabilities and their enforcement, have been too long recognized by our decisions to be now regarded as open questions. Whatever doubt may have existed as to the correctness of the construction, it is well sustained by the weight of American authority. Bispham’s Principles of Eq., sec. 103; Bishop on Married Women, vol. 2, 211; Pomeroy’s Eq. Juris., vol. 3, and many other authors upon the subject. The principles declared in Pippen v. Wesson, supra, and approved by the Court in Dougherty v. Sprinkle, supra, establish the proposition, that whenever a feme covert, under the former law, in the absence of any special provisions in the deed of settlement, could, with the consent of her trustee, bind-her equitable separate estate, she may note, with the written eonsent of her husband bind, her statutory separate estate. Where the case falls within the exceptions mentioned in The Code, § 1826, the consent of the husband is not required. This leads us, therefore, to the consideration of the married woman’s capacity to charge, and the manner in which she *306 may charge, her separate estate, where there is no specific provision in the deed of settlement. Mr. Bishop, vol. 1, sec. 847, well says: “ That since the confusion of tongues at the Tower of Babel, there has been nothing more noteworthy, in the same line, than the discordant and ever-shifting utterances of the judicial mind on the subject. * * * True, there has been, sometimes, a language which, though limited in its sphere, was tolerably plain ; but no sooner was the language in the way of becoming understood, than, lo! some conquering power of another sort came in, and all was confusion once more.” It would be unprofitable,-for the purpose of this discussion, to trace the history of judicial decision in England upon this subject. Still less benebcial would it be to attempt to reconcile the conflicting decisions of the American courts. It is but just, however*, to remark, that as many of these decisions are based upon dissimilar statutory provisions, their inconsistencies, as to general principles, are often more apparent than real. Manly, J., in Knox v. Jordan, 5 Jones’ Eq., 175, says that “this subject has undergone much discussion, and has been variously settled elsewhere, but in North Carolina it is still considered an unsettled question, in many respects. No case has yet gone to the extent of sanctioning the doctrine that, as to the separate propert}', the married woman is regarded as a feme sole in all respects. This seems to be the English doctrine. * * * As we have said, however, we recognize as settled law the principle upon which the case of Frazier v. Brownlow, 3 Ire. Eq., 237, stands, viz.: that a wife may, when not restricted by the deed of settlement, with the concurrence of her trustee, specifically charge her separate estate with her- contracts and engagements. She may incumber expressly, but not by implication.” The implication spoken of by the learned Judge means that which, according to the English doctrine, arose simply from the mere fact of contracting a debt, the theory being *307 that, inasmuch as she could make no personal contract, it logically followed that she must have intended to contract with reference to her separate estate. “ The words ‘ not by implication,’ though found in the decision, are not to be understood in the strictest sense as excluding necessary implications (Wi thers v. Sparrow, 66 N. C., 169), * * * arising out of the nature or consideration of the contract, showing that it was for her benefit.” Pippen v. Wesson, supra So, then, it was settled that where there was no such “ necessary implication,” in order to bind the estate the debt must have been expressly charged upon it. This brings us to the important question which was left open by Rodman, J., in Pippen v. Wesson. He says: “ We put our decision on the ground that a-married woman has no power to contract a personal debt or-to enter into any executory .contract, even with the written consent of her husband, unless her separate estate is charged with it, either expressly, or by necessary implication arising out of the nature of the consideration of the contract, showing that it was for her benefit. Whether the contract would be good if it did expressly charge the separate estate, but was not for the wife’s benefit, it is unnecessary to say.” Upon this point we have no direct decisions, but there are dicta'on both sides. . In Withers v. Sparrow, supra, it is said that there is now no reason why the English doctrine should not prevail. On the other hand, in Dougherty v. Sprinkle, supra, it was said that the consideration must be beneficial to the feme covert. The only question before the Court was, whether a Justice of the Peace had jurisdiction, and the remark was unnecessary to its determination. No authority is cited in support of the proposition. There is also a dictum in the same direction in Rountree v. Gay, 74 N. C., 447, decided at the same term when Pippen v. Wesson was before the Court, the opinion being delivered by the same Justice. There may be found, in other cases, *308 general expressions of similar import, but an examination will disclose that they were unnecessary to the decision of the particular question presented. To the same effect is the intimation of Mr. Malone in his valuable work on Real Property Trials. All of these intimations, it is conceived, were suggested by Rodman, J., in Pippen v. Wesson, for none of the previous cases furnish any ground for such a proposition. The learned Judge suggests (for it is but a suggestion) that, inasmuch as resort must be had to a court of equity to enforce the indebtedness,, that court will not enforce it unless it was for the benefit of the married woman. No authority whatever from our decisions is cited, for none, we believe, can be found; but he relies upon Owen v. Dickenson, 1 Craig & Phil., 48 (Cond. Eng. Ch. Reps., 48), and the leading American case of Yale v. Dederer, 18 N. Y., 265, 22 N. Y , 450. We suppose that these cases were cited in support of the principle that the contracts of a married woman, being void, they could only be enforced in equity. So far from laying down the doctrine that the consideration must be beneficial, they clearly establish the contrary. The English case did not involve the question, the consideration appearing to have been for the benefit of the feme covert, but Lord CotteNHAM takes occasion to approve of Lord Thujrlow’s ruling in Hulme v. Tenant, 1 Wh. and T. L. C., where the doctrine is broadly laid down, that a married woman can bind her separate estate by her general engagements, and that equity will enforce them. This jurisdiction by the courts of chancery was not exercised, we think, for the purpose of enforcing merely equitable claims against her, but to give the same effect to her general engagements, quoad the separate estate, as the law would have given had she been feme sole. The other case referred to (Yale v. Dederer) has been the subject of much comment, and occasionally severe criticism. The Court held that where the consideration was not for the *309 benefit of the wife, the debt must be expressly charged upon her separate estate, and in the same instrument creating the obligation. There was much excitement in the legal mind, both in New York and other States, as to this departure from English rule, and the case was three times before the Court of Appeals, the first appeal having been decided in 1858, and the last, as far as we are informed, in 1877, after Pippen v. Wesson was decided. The defendant, Mrs. Dederer, executed a note, as surety for her husband, for the purchase of some cows, but she did not, in the note, expressly charge her separate estate. Church, C. J., in' the 68th N. Y., 329, thus summarizes the questions involved and the points decided: “The first time, it was decided that, in order for a married woman to charge her separate estate with a debt not contracted for the benefit of her separate estate, it was necessary that there should be evidence of an intention thus to charge it, and that a note or other obligation was not sufficient evidence. 18 N. Y., 265-On the next trial, it was found that the defendant did intend to charge her separate estate, and this Court held’that, when the obligation was in writing, such intention must be expressed in the instrument creating the obligation. 22 N Y.” “ That,” he says, “ was the precise point when the case was last before the Court.” He then affirms the previous rulings, to the effect, as stated in the syllabus, “ that in order to charge the estate of a married woman with a debt not contracted for the benefit of her. separate estate, the intent to charge such estate, where the obligation is in writing, must be expressed in the instrument.” It is difficult to conceive how such a decision is authority for holding that, when such a debt is expressly charged, in writing, upon her separate estate, it is not binding. Mr. Schouler, Domestic Relations, sec. 143, says: “The principle of the decision was this, that in order to create a *310 charge upon the separate estate of a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge, or else the consideration must be obtained for the direct benefit of the estate itself.” Later New York decisions follow the rule of this case, and require a distinct written obligation to bind the wife, where the debt is not contracted for the direct benefit of the estate. In the Corn Exchange Ins. Co. v. Babcock, 42 N. Y., 613, the wife indorsed, as surety, the husband’s promissory note, as follows: “For value received, I hereby charge my individual property with the payment of this note. (Signed) Arm in a. Babcock.” The Court held that this was a charge upon the separate estate, and Yale v. Dederer was cited as an authority in support of the decision. Mr. Schouler further says, that “ the tendency on both sides of the water is towards the conclusion, that the debts of a married woman having separate property are only surely charged by a court of equity upon that separate property, and payment enforced out of it, when they are contracted by her for its benefit, or expressly made a charge therein, or expressly contracted on its credit, and, of course, to the extent only to which the wife’s power of diposal may g0.” * * * “Benefit is not .the sole test; but to the extent of her power of disposition over her separate estate, the wife may charge it with such engagements as she sees fit to make, provided the evidence of intention be satisfactory (upon which point States differ), and provided, of course, that the transaction was'voluntary on her part and not fraudulently procured.” Bishop, supra, vol. 1, sec. 872, quotes, with approval, the language of Haems, J., in Yale v. Dederer, 18 N. Y., 265-283, that what will constitute a charge on the estate “is simply a rule of evidence. All agree that when the wife has expressly *311 charged the payment of a debt upon her separate estate, whether it be her own debt or the debt of another, such charge is valid and will be enforced.” In Stephen v. Beall, 22 Wallace, 329, the Supreme Court of the United States says that “ the doctrine that a married woman has the power to charge her separate estate with the payment of her husband’s debts, or any other debts contracted by her as prihcipal or as surety, has been uniformly sustained for a long period of time. Hulme v. Tenant, 1 Brown’s Ch. Cases, 16 ; Standford v. Marshall, 2 Atkyns, 69 ; Bullpin v. Clarke, 17 Ves, 365; Jaques v. Methodist Church, 17 Johns., 548; Yale v. Dederer, 22 N. Y., 456; same case, 18 N. Y., 276 ; Corn Exchange Ins. Co. v. Babcock, 42 N. Y., 615; Story’s Eq., secs. 1396-1401. The question has been, in respect to the manner in which the conceded power should be exercised and in respect to the requisite evidence of its due execution.” To the same effect is Radford v. Carwile, 13 W. Va., 572, which is an able and exhaustive review of all of the authorities upon the subject. Also Hall v. Eccleston, 37 Md., 510 ; Elliott v. Gower, 12 R. I., 79; Wooden v. Perkins, 5 Gratt., 345 ; Heburn v. Warner, 112 Mass., 271; Williams v. Hugunin, 69 Ill, 214; Willard v. Eastham, 15 Gray, 328; Hodson v. Davis, 43 Ind., 228. These authorities, and many others which could be cited, abundantly show that a “ beneficial ” consideration is not necessary where the wife expressly charges separate estate. As we have said, we have in this State no decision directly in point. In Frazier v. Brownlow, 3 Ired. Eq., 237, the English rule was approved. Ruffin, C. J, says, that Lord EldoN approved of the decree in Hulme v. Tenant, supra, on the ground that the “ intention to contract with reference to the separate estate of the wife was to be implied from the circumstances of her joining the husband in one bond and giving another solely. And he lays down the doctrine, *312 which seems to have been generally adopted in succeeding cases, that the separate property is liable only to a person contracting with her, not as a married woman merely, but as a married woman having a separate estate. In other words, the engagement must be contracted with reference to the separate property, either express or presumptive. All admit that, if clearly so contracted, in reference to the seperate property of a feme covert and upon the faith of it, her engagements must be answered out of her separate personal property.” The doctrine thus laid down is distinctly approved as we have seen, in Knox v. Jordan, supra, with the modification that the estate cannot be charged by implication' mere]y. It is there distinct^ said that, ‘‘ she may alien or incumber it (the separate estate) in the execution of powers conferred on her by the terms of,the trust, and if not restricted by the terms, may, under the authority of Frazier v. Brownlow, charge the income or profits with the pajunents of debts, or appropriate them to any selected object, provided such charge or appropriation be specific and unequivocal and concurred in as before stated.” In that case (Knox v. Jordan) the wife signed a note as surety for her husband, and the bill was dismissed because there was no express charge upon the separate estate. No point was made as to the consideration, and we think, from what was said by the Court, that had the debt been “specifically” charged with the consent of her trustee, the Court would have enforced its payment. Indeed, the reasoning of the Court, in view of the authorities, can lead us to no other conclusion. The words “specifically charged,” as used in the opinion, are synonymous with expressly charged. They cannot mean that the charge must be upon specific property, for such was not the character of the charge in Frazier v. Brotunlow, which case was approved, with the modification mentioned in Knox v. Jordan. *313 Sustained, as we are, by this great weight of authority, we 'conclude that the wife may, with the written consent of her husband, expressly charge her statutory personal separate estate by her engagements in the nature of executory contracts, although the consideration does not inure to her benefit or that of the estate. The intent to so charge must, in such cases, appear in the instrument creating the liability. This applies also to the equitable separate estate, which may, with the concurrence of the trustee, where such concurrence is required, be charged to the extent of the power of disposition conferred by the deed of settlement. Of course, where there are limitations or other special provisions, these must be strictly pursued. Hardy v. Holly, 84 N. C., 661. In the enforcement of these charges no peculiar efficacy is given to writings under seal, as at law the feme covert is incapable of making such executory contracts. The Court will, in all cases, look into the consideration, and if it be such as would sustain an action upon a contract made by a person sui juris, it will be sufficient. The complaint should allege that the wife has a separate estate, subject to the charge, and the execution can issue against that alone. Dougherty v. Sprinkle, supra. The wife can claim the same exemption from execution as she would be entitled to if she were feme sole. We are not authorized by the facts of this case to say what effect such executory engagements may have upon the separate real estate of the wife, where there has been no specific charge by way of mortgage or other conveyance. This point was not passed upon in Arrington v. Bell, 94 N. C., 247, and is still an open question. The application of the principles we have laid down to the case before us, is quite clear. Much was said on the argument about the money in the hands of tlie defendants having been pledged, and it was *314 contended that the execution of the note sued upon was a waiver of the lien. The deposit, it appears, was general, and could not be the subject of a pledge in the strict technical sense. The writing signed by the plaintiff and her husband, therefore, was an executory agreement, upon sufficient consideration, that the defendants should retain the money in their hands as a security for the goods sold to the sons of the feme plaintiff. It was an express charge upon the money on deposit. Whether the transaction amounted to a pledge or not, the giving of the note could not have the effect of defeating the defendants’ rights, if, as they contend, it was intended merely as an evidénce of the “ deposit.” Such was the effect of the testimony of William Wallace, apparently the only witness examined, and we think that the testimony was properly admitted. The note is a simple contract, and as between the parties the consideration was open to inquiry. The testimony was clearly competent to show, either that there was no consideration, or that the consideration was the “deposit,” the subject of the agreement relied upon by the defendants. It was also competent, as we have remarked, to show that the note was given simply as an evidence of the deposit When the consideration was thus impeached, it was incumbent on the plaintiff to have shown some other sufficient consideration. Aldrich v. Stockwell, 9 Allen, 45 This she failed to do, and as the only consideration shown having been found by the jury to be the subject of the agreement_ mentioned, it follows that the plaintiff is not entitled to recover. If the instrument sued upon had been a bond, a more difficult question of evidence would have been presented. *315 The view we have taken disposes of the exceptions to the admission of testimony, and to the failure of the Court to instruct the jury as requested. The charge of his Honor was, perhaps, more favorable to the plaintiff than she was entitled to, and we are of the opinion that there is no error. No error. Affirmed.