G. E. Crawford & Co. v. Gamble

[489] The Chief-Justice delivered the opinion of the court: The appellants, G. E. Crawford & Co., filed their bill in the Circuit Court of Jackson county against Elise J. Gamble and Latimer C. Yaughn. The bill alleges that Mrs. Gamble was a married woman, the wife of Louis M. Gamble. That said Louis M. Gamble died on or about the month of March, 1885. That Mrs. Gamble, for a year prior to the first of March, 1884, being a married woman, was engaged in a mercantile business at Real’s Landing, in said county, which business was under the care and management of her said husband. That said Elise J. Gamble “ was seised and possessed in her own sole right of the aforesaid mercantile business,” and conducted the same with the full knowledge and consent of her said husband. That the said Elise J. Gamble, before and on the said first day of March, 1884, owned and still owns in her own right and name “ as her sole and separate estate,” a large amount of real and personal property, which is described in the bill. That Mrs. Gamble, at and during the time she was so married to Louis M. Gamble, and while she w'as conducting the aforesaid mercantile business, became indebted to the complainants in the sum of seven hundred and sixty dollars, partly for money to pay off indebtedness contracted prior to March, 1884, in her said mercantile business and to purchase other goods, wares and merchandise to replenish her stock at Real’s Landing, and partly in goods furnished her for the same purpose. That said advances of cash and merchandise made by complainants to Mrs. Gamble were made with reference to the fact that she owned a large “ separate estate” and that the said cash and advances were made for the benefit of said “ separate estate.” The bill alleges the execution by Gamble and wife on the 22d of July, 1884, of two mortgages to Latimer C. [490] Vaughn, which are claimed by complainants to be fraudulent as against them. The prayer of the bill is for an account and that the separate estate of Mrs. Gamble may be charged with the amount found due on said accounting. The defendant demurred to the bill. The second ground of demurrer was “ that the bill does not allege sufficient facts to constitute a charge on her separate estate for the debt of complainants.” The demurrer was sustained by the court and the appellants allege that its sustentation was erroneous. The demurrer was properly sustained. There was no allegation in the bill setting forth how she owned the property, whether it was her separate statutory property by virtue of the act of March 6, 1845, or by virtue of the Constitution of 1868, or whether it was an equitable separate estate. This court, in Dollner, Potter & Co. vs. Snow et ah, held that there are material differences between the equitable ‘ separate estate ’ of the wife and the ‘ statutory separate property ’ of the wife. A complaint or bill seeking to charge either should disclose which class of property was sought to be affected.” A proper adjudication of the case requires'that it should be shown how, in what right, legal or equitable, she owns the property which the bill seeks to subject to the payment of the debt. If it was a legal separate estate, vested in her by descent or purchase, the law, whatever it may be, would be our guide in determining her power to charge it; if it was an equitable separate estate the deed creating it would fix the manner in which it could be charged, if at all. The decree of the Chancellor is affirmed, with leave to the complainants to amend their bill in accordance with the rules of practice.