Nunn's Adm'r v. Givhan's Adm'r

PECK, O. J. This court, following the English decis [375] ions, and, we think, in some eases, going even beyond them, has held that a feme covert, having a separate estate by contract, if she makes a promissory note with her husband, for the payment of her own debt, or that of her husband, it will be implied that she thereby intends to make the payment^ the debt a charge upon her separate estate. — Bradford and Wife v. Greenway, Henry and Smith, 17 Ala. 797; Collin et al. v. Larenberg & Co., 19 Ala. 682; Collin et al. v. Rudolph, 10 Ala. 617 ; Caldwell v. Sawyer, 30 Ala. 283; Cowles and Wife v. Morgan, 34 Ala. 535 ; Gunter v. Williams and Wife, 40 Ala. 561; and other cases. We feel constrained to say we cannot approve of these decisions, so far at least as they are held to apply to notes made for the payment of the husband’s debts; as, however, they have become the law of this court, we do not feel at liberty to depart from or overrule them, but we can not consent to extend them to cases not clearly and strictly within the principles settled by them. We think the true rule should be, that if a feme covert, having a separate estate by contract, with her husband, makes a note, bond or other document in writing, for the payment of the husband’s debt, that thereby, without more, no charge for its payment is created upon her separate estate ; that no implication or inference, in any case, should be made against her, that she intends to make the payment of a note, or other promise in writing, a charge upon her separate estate, unless the consideration thereof be for her benefit; and we should so rule, if it were a question of first impression, in this court. Where the note or written promise of a feme covert makes no direct charge upon her separate estate, it is held that it becomes a matter of intention whether a charge is or is not thereby created. Mr. Story says, “ it is agreed that there must be an intention to charge her separate estate, otherwise the debt will not affect it.” — 2 Story Eq. 1400. But, it is said that by making the note or promise, it is to be inferred, prima fade, that she intends to make its payment a charge upon her separate estate. On this subject, Mr. Story further says in the same section, that “ the fact that the debt has been contracted during coverture, either [376] as principal or as a surety for herself or her husband, or jointly with him, seems ordinarily to be held prima facie evidence to charge her separate estate, without any proof of a positive agreement or intention to do so.” The reason given for this is, that the security must be supposed to be executed with the intention that it shall operate in some way; and that it can have no operation, except as against her separate estate. This may be a plausible reason, where the consideration of the security is for the benefit of the wife; but where the consideration is not for her benefit, it seems to us to be an unsafe, if not wholly an insufficient reason, to justify a court of enuity in decreeing the payment of the debt against the wife’s separate estate. We feel persuaded that this supposed intention, in a large majority of cases, will be found not to accord with the truth, when considered in connection with the many influences that may be, and no doubt too often are, brought to bear, upon a loving and trusting or a timid and fearing wife; influences that can seldom be proved, and, if proved, can hardly be justly estimated or duly appreciated by either judge or court. Without saying more on this subject, but confining the foregoing decisions to cases where the separate estate is created by contract, we think it manifest the appellant is not entitled to the relief prayed in his bill of complaint. The lands out of which he seeks the payment of the notes named in his bill, came to Mrs. Givhan by descent from her father and brother, and were not, in any sense, her separate estate; her husband, by his marital rights, being entitled to the possession and to the rents and profits during the coverture; she had, therefore, no power to charge them with the payment of either her own or her husband’s debts. The decree of the chancellor, on her bill filed in 1815, was not intended to settle these lands on her; the prayer of the bill was, that the lands might be decreed to be sold, and the proceeds of the sale, when realized, be settled in the hands of a trustee to the separate use of herself for life, and after her death to her children. The decree conforms to the prayer of the bill, and directs [377] the register to sell the lands at public outcry, on a credit of one year, and to take notes with good security, and a mortgage on the premises, to secure the payment of the purchase-money; and that he should appoint a trustee to take the charge and management of the trust estate thereby contemplated, and to account annually, and to abide by such orders and decree as might be made by the court touching said trust property. This decree, although perhaps final as determining the right of the wife to a settlement, was substantially in all other respects preliminary and interlocutory. A trustee was appointed by the register, but before any sale was made under the decree, the parties, both husband and wife, died, and no sale was ever made; consequently no trust estate ever came to the hands of the trustee to be settled to the use of the wife. George Givhan, the husband, died in 1861, and the death of Mrs. Givhan, the wife, and defendant to this bill, was suggested at the April term of the chancery court, in 1867. Why this decree was not executed before the death of the parties, we are not informed. George Givhan, the husband, lived nearly eighteen years after the said decree was made, and during all that time no step was taken to have the same carried into effect, or in any wise to proceed further with the case. If this did not amount to an abandonment, on the part of Mrs. Givhan, of her right to a settlement, it would seem that the necessity for a settlement ceased to exist after the death of the husband; and, after the death of the wife, it became impossible, there then being no person upon whom it could be made. However this may be, we hold that Mrs. Givhan, by virtue of these proceedings, under the circumstances, acquired no separate estate, either in the lands or in the rents and profits that accrued after the death of her husband, that can be charged with the payment of the notes named in the complainant’s bill. The said decree, and the proceedings in which it was rendered, until a sale of the lands was actually made, and the proceedings vested in the hands of the trustee, remained and continued in fieri, and did not pass beyond the [378] power and control of Mrs. Givhau. She might have declined to proceed further with the case, or have dismissed her bill; and her death must be taken to have the same effect. Therefore, the character of the lands which it was the purpose of her bill to have sold and the proceeds settled in the hands of a trustee to her separate use, was never changed, and on her death they descended to her daughter, Mrs. Anna Jane Fourquerean, her heir-at-law, as though the bill of her mother had never been filed ; consequently, at the time the notes for the payment of her husband’s debt were made, she had no separate estate which, even by implication, could then, or can now, be charged with their payment. Let the decree’of the chancellor, dismissing the bill of complainant, be affirmed at the costs of the appellant.