Merchant v. Cook

Mr. Chief Justice Alvey delivered the opinion of the Court: On the whole case, as shown by bill and proof, there are three questions presented: 1st. Whether the claim of the plaintiffs, and the extent thereof, be established by proof; 2d. Whether, if the claim be established, it constitutes a charge or lien upon the trust property of the defendant, Mrs. Merchant, such as to entitle the plaintiffs to a sale of the property to satisfy their claim ; and, 3d. Whether the claim of the plaintiffs, resting in mere oral argreement or promise, is not within the Statute of Frauds, and therefore barred of the right of recovery thereon, as against the separate real estate of the defendant ? 1. With respect to the first of these questions, in view of the conflict of the evidence in relation thereto, and also of the principles of law to which the case gives rise, we deem it unnecessary to decide as to the fact of the existence of the contract and the extent of the claim thereunder. But, assuming the claim to be established or undisputed, then the second question arises to be considered and determined; and that is— 2. Whether such claim can constitute a lien or charge upon the separate estate of the defendant, within her power of disposal as given and defined in the deed of trust from Shepherd — such as to entitle the plaintiffs to a decree for the enforcement of such lien or charge, by sale of the property? The property sought to be subjected to the payment of the claim is an equitable estate vested in the de- fendant, a married woman, by deed or settlement, made prior to the Married Woman’s act of April 10, 1869, and that act, therefore, has no application to the case. The rights of the parties are governed, and must be decided, according to the general principles of-equity jurisprudence applicable to such case, and without any reference to the statute of 1869. It is a well settled rule of construction of conveyances, — 401 — such as the one before us, that the intention of the grantor or settlor must be regarded and conformed to with respect to the restrictions or limitations imposed upon the exercise of the disposing power of the grantee or cestui que trust. Here the deed conveys to the married woman a life estate in the use of the property, with power of disposition to be exercised with certain formality and restriction — the legal estate remaining in a trustee. Such formality and restriction are intended, manifestly, for the protection of the married woman, and also for the protection of those entitled in remainder after the death of the cestui que trust for life. The power of disposal, as expressed in the deed, is “ to sell, dispose of and convey absolutely in fee-simple, or in trust by way of mortgage, to such person or persons, and for such uses and purposes, as she, the said Anna J. Merchant, shall and may at any time hereafter, request and direct in writing, witnessed by two zvitnesscs, her present or future coverture notwithstanding.” And in default of such disposition, the property in trust is limited over to the children of the equitable life tenant on her death, and in default of children, then the trustee is required to convey the estate to the husband of the life tenant. It was clearly the intention of the grantor in the deed, that the power of disposition should be exercised in the manner prescribed by him, and that the limitations over should not be defeated except in the manner prescribed. It appears that the power of disposal has been exercised in the making of the mortgage referred to in the bill, but that was pro tanto only. Whatever remains of the estate, remains subject to the power of disposal as prescribed by the deed. It clearly cannot be successfully contended that the property conveyed to the separate use of the defendant, by the deed before us, is liable to her general engagements. There has been, no doubt, a great diversity of decision, both in the English and American courts, as to the conditions and circumstances under which the separate estate of a married woman may be charged with her debts. But, as — 402 — said by the Supreme Court of the United States, in Ankeney v. Hannon, 147 U. S. 118, 128, “as to such property she is regarded in equity as a feme sole, and it was, therefore, formerly held that her general engagements, though not personally binding upon her, could be enforced against the property. This doctrine, howev.er, has been modified in modern times. It is now held that to charge her separate estate with her engagements, they must have been made with with an intention on her part to create a charge upon such estate ; that is, with reference to the property, either for its improvement or for her benefit upon its credit. “ There has been much divergency of opinion and some conflict, both in the courts of England and of this country,” says Mr. Justice Field, speaking for the court, “ as to what is necessaiy to establish such intention on the part of the wife to charge her separate estate for her contracts. It is conceded that there must have been an intention on her part to effect such a charge, otherwise her engagements will not have that effect.” . The Supreme Court then proceeds to say : “ The numerous decisions in the High Court of Chancery of England have shown this divergency and conflict in a marked degree. Lord Thurlow places the right of the wife to charge the property upon her right as owner to dispose of it without other authority. Hulme v. Tenant, 1 Bro. C. C. 16; Fettiplace v. Gorges, 3 Bro. C. C. 8. But this theory was afterwards rejected by Lord Loughborough, who denied the liability of a married woman’s separate estate for her general parol engagements, and explained the previous cases upon the ground that the securities which the wife had executed operated as appointments of her separate property. Bolton v. Williams, 2 Ves. Jr. 138. This doctrine proceeded upon the assumption that the wife’s separate estate was not liable for her general engagements, but only for such as were specifically charged in writing upon it. This theory Lord Brougham rejected, holding that there was no valid distinction between a written security, which — 403 — the married woman was incapable of executing, and a promise by parol, and that a mere parol engagement of the wife was equally effective to create a charge as her bond or note. Murray v. Barlee, 3 M. & K. 209. The reasoning of Lord Brougham to establish his views was afterwards met and rejected by Lord Cottenham. Owens v. Dickenson, 1 Cr. & Ph. 48.” And to.the effect that a married woman, having separate estate, does not charge it by her general engagements, but only by executing written instruments having special reference to her separate estate, see opinions of Sir John Leach, Vice Chan., in cases of Greatley v. Noble, 3 Mad. 49, and Stuart v. Kirkwall, Id. 387. This subject is very fully considered in the cases of Yale v. Dederer, 22 N. Y. 450, and Willard v. Eastham, 15 Gray, 328, 335, both of which cases are referred to with approval by the Supreme Court of the United States, in the case of Ankeney v. Hannon, supra. The general result of what appears the best considered cases, depending upon the terms of the deed or conveyance creating the separate estate, as to the extent of the disposing power conferred upon the cestid que trust, is this, that inasmuch as a married woman is treated in equity as a feme sole, in respect to her separate estate, where the instrument creating the estate contains no restrictions or limitations on the power of disposition, she may dispose of it, or charge it, as a feme sole, upon the principle that the jus disponendi accompanies the property. But where a mode of alienation or appointment is provided in the instrument creating the estate, that mode must, in a substantial way at least, be pursued, for by plain implication, it operates as a negation of any other mode, and is a paramount law, governing and controlling every contract in relation to the property. Such limitation the grantor or settlor has the right to impose, and the ceremonials prescribed by him are of the essence of the power, and therefore cannot be disregarded. Cook v. Husbands, 11 Md. 492, 503 ; 2 Sto. Eq. Jur., secs. 1390, 1391, and note containing collection of authorities ; Thack — 404 — well v. Gardiner, 5 De G. & Sm. 58. And for a full collection and review of the American cases upon this subject, see the note of the American editors to the case of Hulme v. Tenant, 1 Eq. Lead. Cas. 679. Whether, if the contract as set out in the bill had been reduced to writing, stating on its face the intention to charge the separate estate with the claim, it could have been specifically enforced against the property, by a court of equity, as a disposition by contract in the nature of an appointment, is a question that might admit of serious discussion, in view of some of the cases upon the subject. But that question we are not required to consider in this case. 3. We come now to the last question presented by the defendant, raised both by the general demurrer to the bill (Randall v. Howard, 2 Black, 585, 589), and the amended answer; and that is, as to the applicability of the Statute of Frauds to the attempted charge of the real estate of the defendant with the plaintiffs’ claim, by mere parol. We have seen that there is no lien or charge created upon the estate by mere operation of law by reason of the existence of the contract simply; but that, in order to create a charge or lien upon the property, it must be effected by an express contract, having reference to the -property to be charged. In this case, as we have seen, it is not claimed or pretended that the contract set up and attempted to be enforced against the separate real estate of the defendant, was reduced to writing and signed by her or by any one for her. It is alleged, and also proved by the plaintiffs, that the defendant agreed that their claim for services should be a charge or lien upon the land upon the successful termination of the litigation to avoid the deeds. This was clearly a contract “ for an Interest in or concerning lands, tenements, or hereditaments,” and is therefore within the provision of section 4 of the Statute of Frauds. Alchin v. Hopkins, 1 Bing. N. C. 102 ; Toppen v. Lomas, 16 Com. B. 145 ; White v. Coombs, 27 Md. 489 ; Brown, St. Frauds, secs. 266, 267 ; 2 Taylor Ev. sec — 405 — 948, p 913. The Statute of Frauds, however, only applies so far as the contract professes or attempts to create a charge or lien upon the land. As a contract, irrespective of the lien or charge upon land, it is valid and enforceable by action at law, if established by proof; and the judgment when recovered would be enforceable against both land and personal property, acquired and held by the defendant under the Married Woman’s act of April 10, 1869. Here the property sought to be charged is not held under that act, but independently of it. The conclusion is, from what we have said, that the decree of the court below establishing the claim of the plaintiffs to the extent of $2,000, subject to a credit of $240.75, and decreeing the sum so ascertained to be a lien upon the separate property of the defendant, conveyed in trust to her use by the deed from Alex. R. Shepherd, and that the same should be sold to satisfy such lien, must be reversed; and as the bill and the proof present no case for relief by a court of equity, the cause will be remanded, with directions that the bill be dismissed. Decree reversed, and cause remanded.