Baker v. Gregory

RICE, C. J. The expenditure by a stranger, without obligation, of his own funds, for the benefit of an infant bereaved of parents, in maintaining and educating her, is a sufficient consideration to support an express promise, made after she comes of age, to repay him the amount so expended, where, during the continuance of such expenditure and of her infancy, she became entitled to a large estate, out of which no allowance for her maintenance or education was applied for or made. — Cooper v. Martin, 4 East, 77; Southerton v. Whitlock, 2 Strange, 690; Townsend v. Hunt, Cro. Car. 408; Carr v. Wyly, 23 Ala. R. 821; Kenan v. Holloway, [550] 16 Ala. 53; Hatch v. Purcell, 1 Foster’s Rep. 544; Harris v. Davis, 1 Ala. Rep. 259; Story on Prom. Notes, § 185; Wennall v. Abney, 3 Bos. & Pul. 249, note (a); Eastwood v. Kenyon, 11 Ad. & Ellis, 438; Whipple v. Dow, 2 Mass. Rep. 415; Atkins v. Banwell, 2 East, 505. If such expenditure was made at the request of her brother-in-law, and in consequence thereof he had become liable for its amount, the existence of such liability on his part would be a sufficient consideration to support an express promise, made by her after she became of age, to indemnify Mm against any loss he might thereby sustain. — Carr v. Wyly, supra; Bradley v. Pratt, 23 Vermont Rep. 378; Conn v. Coburn, 7 New Hamp. Rep. 368. If, after such expenditure had been made at the request of her brother-in-law, she married him, but retained her property as her separate estate by an ante-nuptial contract,, without any restriction upon her power to charge or dispose of it; and afterwards, and after she came of age, at an interview between her and her husband and the stranger who had made the expenditure, she, with a knowledge of the facts, authorized her husband, as her “ acting trustee”, to execute to the stranger a note for the amount of the expenditure, payable some one, two or three years after its date, with the intention thereby to charge her separate estate with its payment; and her hpsband, as her “ acting trustee”, did thereupon accordingly' execute such note, subscribing his name thereto with the description of “ acting trustee”; and the stranger thereupon accepted and received it as a charge upon her separate estate, — the note would be treated and enforced by a court of equity as such charge. — 1 White & Tudor’s Leading Cases in Equity, top pages, 389-399; Ozley v. Ikelheimer, 26 Ala. 332. And the mere fact, that such note had been transferred, or endorsed, would not disable the trans-ferree or endorsee from enforcing it as such charge. — Roper v. McCook, 7 Ala. 318. Although such note, in the absence of extrinsic evidence, would prima fade, impose a personal liability upon her husband; yet the fact that his name was subscribed to it, with the description of “ acting trustée”, would entitle him, or its owner, to show by parol evidence the considertion, intention, [551] and purpose of the note, and the true character of the transaction; and these being thus proved, a court of chancery would not allow the sense and equity of the transaction to bo controlled by the mere form of the note. — Lazarus v. Shearer, 2 Ala. Rep. 718, and cases therein cited; Hartwell v. Rice, 1 Gray’s Rep. 587. Although a married woman may own a separate estate, and may with her own hand sign her name to a note; yet no personal liability can be thereby imposed on her. But a married woman, owning a separate estate, without any restriction upon her power to charge or dispose of it, may charge it with the payment of her husband’s debt; and any promise, or contract on her part, will constitute a charge on her separate estate, which would have bound her personally, if she had been sole and unmarried at the time it was made. Ozley v. Ikelheimer, 26 Ala. 332, and other authorities cited supra; Hawley v. Bradford, 9 Paige, 200; Neimcewicz v. Gahn, 3 ib. 614; McCroan v. Pope, 17 Ala. 612. The foregoing propositions are laid down with a view to the testimony and pleadings in this case; but without any intention to intimate how the case ought to be decided under their application, when it goes back for another trial. The decree of the chancellor shows that he did not decide the case on what we consider its merits; and that he erred in dismissing the bill upon the particular ground on which he did dismiss' it. For that error, the decree is reversed, and the cause is remanded. The appellees must pay the costs of this court.