Parsons v. Henry

Bralev, J. By the common law, because of the union in person of husband and wife, personal property acquired by a married woman during coverture could be levied upon by the creditors of the husband in satisfaction of his debts. Morse v. Toppan, 3 Gray, 411. Gerry v. Gerry, 11 Gray, 381. Nolin v. Pearson, 191 Mass. 283, 284. But this was modified by Sts. 1855, c. 304, § 7, and 1857, c. 249, §§ 1, 2, which conferred upon her the right to carry on any trade or business on her sole account. The earnings or profits derived therefrom not only became her separate property, with the power of disposal free from her husband’s interference or control, but could not be taken in satisfaction of his debts. Lord v. Parker, 3 Allen, 127, 129. Forbes v. Tuckerman, 115 Mass. 115. Chase v. Phillips, 153 Mass. 17, 20. But, while no conditions at first were attached [509] to the exercise of these rights, it often happened that husband and wife equally appeared to be in the possession and use of the property, as well as of the business. To remove this uncertainty for the benefit of creditors, who, if they contracted with the husband, could not hold the wife, or, if they contracted with her, could not collect their debts from him, but, if put in possession of information as to the title, could regulate their mercantile transactions accordingly, St. 1862, c. 198, was enacted. Chapman v. Briggs, 11 Allen, 546. Allen v. Clark, 190 Mass. 556, 559. In § 1 it provided that if a married woman, then or thereafter doing business on her own account, neglected to file a certificate in the clerk’s office of the city or town where such business was carriéd on, stating the name of her husband, the nature of the business, and its location when practicable, her husband’s creditors might attach the property or take it on execution. By re-enactment, this statute has been continued as a part of our statutory law relating to the personal and property rights of married women when engaged in trade, and it was in force when the equitable attachment of the funds standing in the name of the claimant was made. St. 1881, c. 64, §§ 1, 3. Pub. Sts. c. 147, § 11. R. L. c. 153, § 10. It is conceded that there was a failure to comply with this requirement. But, while insisting upon her exception that upon the facts reported the master erroneously found she was engaged in business, the protection of the statute is invoked; as he correctly ruled, if the finding stands, that because he knew of the source from which her title to the funds was derived, the plaintiff is estopped from asserting the rights of an attaching creditor. The master decided upon evidence not reported, that, while supervising her household affairs, at first she became interested in the importation and sale of soap, under a certificate duly recorded, and then, without such certificate, dealt in the purchase and sale of wool for a period of nearly five years, making large aggregate profits. But, although employed in other pursuits, she still would be engaged in business when dealing in wool, even if her entire time was not required in the management of this part of her commercial affairs. If a single purchase or sale cannot be considered anything more than a transient transaction, her continuous trading, with the making of bank deposits and [510] the keeping of hooks of account, warranted the conclusion of the master that she was conducting an established business as contemplated by the statute. Desmond v. Young, 173 Mass. 90, and eases cited. But the ruling to which the plaintiff excepted, that, because of his knowledge that the claimant traded on her sole account, in equity he would be estopped from taking advantage of this neglect even if no certificate had been recorded, cannot be supported. It is the purpose of the statute that the attaching creditor, either at law or in equity, shall be barred only by the recorded certificate. Chapin v. Kingsbury, 135 Mass. 580; S. C. 138 Mass. 194. The amendatory act changed an absolute to a qualified right by requiring a certificate as a precedent condition, if her property, either when used or when acquired in trade on her separate account, was to be exempt from seizure by her husband’s creditors. Through a voluntary failure to avail herself of this condition, the proceeds of the business as between herself and them remained his property as at common law. The correlative provision found in § 2, now R. L. c. 153, § 10, that in the absence of a certificate, which he may make and record if she does not, the husband shall be liable for. all contracts lawfully made in the business, originated with the statute. But, if by this section the creditor who contracts with the wife has been given a remedy against the husband, there is no express or implied modification of the general rule, which, apart from our statutes enlarging the rights of married women, subjects her personal property to the payment of his debts. If she had been induced by the intentional misrepresentations of the plaintiff or his firm to refrain from making known her independent ownership by the statutory record, he might be precluded from taking advantage of this omission. But no equitable estoppel is created which prevents the plaintiff from asserting a lawful right, where, merely from personal knowledge or through the information of his partners by which he would be bound, he must be held to have known that in fact the property employed, as well as the business itself, belonged to her. Nourse v. Nourse, 116 Mass. 101. It follows that the plaintiff’s exception to the master’s report and appeal must be sustained, and the exception of the claimant overruled. [511] There has been some embarrassment in the consideration of the claimant’s exception and appeal arising from the confused character of the record. In the original bill she was not made a party, nor, after her petition to intervene as claimant of the property attached had been allowed, was any amendment made praying for relief as against her. The contest as between her and the plaintiff consequently was limited to this question. By the interlocutory decree, the exceptions of the parties were overruled, but, while the others appealed, she did not, and, having taken no appeal, the master’s report, so far as it was adverse to her, could not be revised. Hillier v. Farrell, 185 Mass. 484, 435. After the entry of this decree, more than a year elapsed when, after argument, a final decree was entered, again overruling the exceptions, from which they severally appealed. But at that time, as the record stood, there were no exceptions pending upon which the final decree could operate. If the final decree had been erroneously affected by the interlocutory decree, her rights would still have been saved, but, having been properly entered as to her, she is not aided by R. L. c. 159, § 26. Cawley v. Jean, 189 Mass. 220. It may be inferred, however, with some hesitation, that, as no objection has been made before us, the court with their consent, but without any formal recognition by way of recital of either the agreement or its previous decree, treated the exceptions of the parties as still pending, and proceeded as if the interlocutory decree had not been entered. The final decree of the Superior Court must be modified by directing that the balance of the proceeds from the sale of the wool shall be paid to the plaintiff, but in all other respects it is affirmed. Ordered accordingly.