Priest, Barber & Co. v. Cone

The opinion of the court was delivered by Powers, J. From the conflicting decisions of the American and English courts touching the power of married women and persons dealing with them to subject their separate estates to liability upon their contracts, one safe and practicable rule is deducible. Contracts entered into by a married woman to obtain necessaries for herself and family, or for her separate estate, and upon the credit of such estate, will be enforced in equity against it. What are necessaries, will be determined by the court as each case arises. If the separate estate is fettered by limitations or conditions in the grant to the wife, she will take and ■ hold it subject thereto, and persons dealing with her must take notice of the extent of her right. The separate estate of a married woman against which rights exist and may be enforced by her creditors, is wholly a creature of courts of equity, and their reme [500] dies can exist and be enforced in those courts alone. In that forum the common-law disabilities of the wife in respect to the ownership of property and the right to contract upon its credit are disregarded, and, to the extent above stated, she contracts as freely as if she were unmarried. It would seem to follow that the corpus of her separate estate, to the extent of -her title, may be charged with the payment of such debts as she may lawfully contract upon its credit. The right to contract a debt is of no practical benefit to the wife, unless her creditors be clothed with ample remedy to'secure their debts upon her property. Courts of equity must therefore give execution against the property, and ■ will not limit creditors to its rents, issues, and profits. Whether the husband may interpose his marital right to the use of his wife’s real estate, against the proceedings of her creditors seeking to collect their debts, is a question not arising in this case, and therefore not to be here decided. It is the husband’s primary duty,' as husband, to supply his family with necessaries, and his duty as tenant by the curtesy of his wife’s real estate, to supply the same with all things ^that may be classed as necessaries for its enjoyment and conservations. If he omits these duties, and the wife is compelled to perform them upon the credit of her property — in fact charging it for the payment of his debt — it would seem to be inequitable for him to complain that his enjoyment of her estate is disturbed. In this case Mrs. Cone bought necessaries for her family and her farm, understanding that credit was given to her because she owned the farm and was responsible. Her property should therefore be charged for the payment of the orators’ debt. Dale v. Robinson, ante, page 20; Johnson v. Gallagher, 3 De G. F. & J. 494; Picard v. Hine, Law Rep. 5 Ch. Ap. 274. The decree of the Court of Chancery is affirmed, and the cause remanded to that court.