Goldsmith Bros. v. Moore

Hart, J., (after stating the facts). There is no direct and explicit averment in the complaint that the contract for the sale of the goods was for the use and benefit of Mrs. Duncan L. Moore or for the use and benefit of her separate property. Moreover, the letter set out in the statement of facts was made a part • of the complaint and thus became a part of the record. It was the foundation of the action and will control the general allegations of the complaint. American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263; Beavers v. Baucum, 33 Ark. 722; Buckner & Co. v. Davis & Wife, 29 Ark. 444 ; 31 Cyc. 85. It is well settled in this State that a married woman can not bind herself as surety or guarantor for the debts of her husband or for a third person, but her personal liability on contracts is restricted to contracts made for her own use and benefit or for the use and benefit of her separate estate. Sidway v. Nichol, 62 Ark. 146; Hardin v. Jessie, (Ark.), 146 S. W. 499, and cases cited; McCarthy v. Peoples Savings Bank, 108 Ark. 151; Sparks v. Moore, 66 Ark. 437. The contract in question was made for the purchase of certain dental supplies for the husband of Mrs. Duncan L. Moore, and was not made for .her use and benefit or for the use and benefit of her separate estate. She became a surety for her husband and her separate estate would not be chargeable for the performance of her undertaking unless her contract created a lien on her separate estate or some portion of it, as surety for the payment of the debt. The words used are “and pledge my separate estate for the payment of said account.” The question then is, does the language used create a lien upon her separate estate which a court of equity will enforce as an equitable mortgage? We think the language used is too indefinite and uncertain for that purpose. In such cases the form of the writing or agreement is not important, provided it sufficiently appears that it was thereby intended to create, a lien, but the particular property to which the lien is to attach must be clearly described or pointed out. In the case of Bell v. Pelt, 51 Ark. 433, the court held: “Where an instrument is intended to secure a debt by fixing a charge on land which it' properly describes, equity will give effect to the intention of the parties by enforcing the lien, although the writing is not in the form of the ordinary technical mortgage and contains neither words of grant or defeasance. ’ ’ Mr. Pomeroy, in discussing the question, said: “The form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose rather than at the form; and if the intent appears to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows. ’ ’ In the instrument sued on no particular property is described and in the application of the principles above announced, in order to create a lien, in equity, on defendant’s separate estate, it is necessary that the writing or agreement should describe or point out the particular property to which the lien is to attach, and, not having done so, it would not create an equitable lien. The decree will be affirmed.