Hall v. Eccleston

Alvey, J., delivered the opinion of the Court. By the contract, on which the bill of complaint was filed in this case, the appellees, being husband and wife, jointly and severally bound themselves, their separate and individual estates, for the payment of the debt mentioned, to the appellants; and the only question raised by the demurrer to the bill of complaint is, whether the separate estate of the wife can be bound and made liable for the payment of such debt, under the 2d section of the 45th Art. of the Code. The section of the Code referred to provides, that all property owned or acquired by a married woman, according to the modes designated in the preceding section of the same article, she shall hold for her separate use, with power to devise the same as if she were a feme sole, or she may convey the same by a joint deed with her husband. It is contended, on the’ part of the appellees, that, as there has been prescribed a particular mode of alienation or disposition of the wife’s separate estate acquired and held under this provision of the statute, no other mode exists, and that, to allow the estate thus held to be [519] charged and made liable to sale for the payment of debts, as is sought to be done in this case, would contravene the policy and clear intention of the law. But in this we do not concur. Before the adoption of this statutory provision, (I860,) it was the well settled law of this State, that a married woman, in the contemplation of a Court of Equity, occupied the position of a jeme sole, in respect to her separate estate; and where the deed or instrument creating the separate use contained a limitation or restriction on the power of disposition, she was at liberty to dispose of it as a feme sole, without the assent or concurrence of either her husband or trustee But, in case the instrument prescribed a particular mode of alienation or appointment, that mode was regarded as a negation of all others, and was required to be pursued This restriction, however, was allowed in deference to what was supposed to be the intention of the parties to the instrument creating the estate; for, as was said in Cooke vs. Husbands, 11 Md., 506, “ a feme covert may act in reference to her separate estate as a feme sole, where the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument.” In the adoption of the provision of the Code, the separate estate, which before that time was the mere creature of a Court of Equity, and not recognised at law, was made a legal limitation or estate, as to all property acquired by a married woman in the modes designated in the statute referred to; and the right and power of disposition, other than by way of devise, was from that time required to be exercised with the concurrence of her husband. The reason for requiring the concurrence of the husband is obvious. In the first place, it is supposed to operate as a check upon what might be an improvident disposition or incumbrance of her property by the wife; [520] and, in the second place, as the husband is interested not only in the present enjoyment of the property, but in the estate that may devolve on him in the event of the death of the wife intestate, it was deemed proper and right that the wife should not be allowed to divest herself of her estate, without the husband’s consent. But it does not follow from this restriction upon the power of disposition, that the husband and wife may not contract in a manner to charge or incumber the estate; nor is it to be assumed for a moment that the Legislature ever intended to divest the Courts of their well defined and long established equity power and jurisdiction to enforce such contracts. While the statute provides the manner in which the property of a married woman may be conveyed, there is nothing indicating in the slightest degree an intention on the part of the Legislature to restrict her power to charge or incumber it, provided it be done with the concurrence of her husband. It is not disputed that the separate estate of the wife may be incumbered by mortgage, exe- • cuted by the wife jointly with the husband, even as security for the husband’s debts. We suppose it to be equally clear that a contract, founded upon proper consideration, by which the husband and wife bind themselves to execute a mortgage of the separate estate of the wife, will be enforced by a Court of Equity, and such estate held liable for the debt intended to be secured ; (Stead vs. Nelson, 2 Beav., 245 ;) and it is quite as free from doubt that the separate estate held by the wife, is liable in equity for all the debts, incumbrances, or other engagements which she, together with her husband, may by express terms, or clear implication, charge thereon. Having full power of disposition of the estate, the wife, jointly with her husband, may incumber and charge it to any extent that she may think proper.. 2 Story Eq. Jur., secs. 1399, 1399a. Indeed, without such power, the estate would not subserve the purposes for which it was [521] designed. One of the great objects of the estate is to enable the wife to maintain a separate credit, and to be independent of the misfortunes and improvidence of the husband. Without the power to charge or incumber the estate, no credit could be maintained on the faith of it, and every occasion to raise money by the wife would likely involve the necessity of either selling it absolutely, or conveying it by formal mortgage. This was never the design of the Legislature. The debts charged upon the estate constitute, as between the parties, equitable liens, and are enforced as being somewhat in the nature of equitable mortgages. This, until the act of 1872, chapter 270, was the only remedy for the creditor, as against a married woman or her separate estate. In the view of a Court of Equity, the mere formality of the charge or incumbrance is quite unimportant, provided the intention of the parties is sufficiently manifest. In the case of Tiernan vs. Poor, 1 Gill & John., 216, the Court, in speaking of the instrument set up in that case to charge the separate estate of a married woman, said : “According to our views these averments make out a clear case for equitable interposition. In point of .form it may not have been strictly correct to treat the instrument of writing in controversy, as a legal mortgage, as it seems to have been done in the original bill. As such it may not be clothed with the necessary legal attributes. If it be not thus clothed, it is at all events, clearly a contract which equity will treat as a mortgage, and as between these parties, so far as concerns this suit, liable to all the incidents of a strictly legal mortgage, as much so as if all the formalities of acknowledgment, privy examination, and registration, had been pursued.” See also Brundige vs. Poor, 2 Gill & John., 1. In this case, by the express terms of the contract sought to be enforced, the husband and wife bind the separate [522] «state of each of them, and the only way to give force and efficacy to the stipulation, so far as the wife is concerned, is hy treating the contract as constituting an equitable lien or charge upon her separate estate ; and, upon failure .to pay the debt, to decree the sale of the land for its satisfaction. 2 Gill & John., 1. (Decided 21st February, 1873.) Entertaining these'views, we are of opinion that the demurrer to the bill of complaint should have been overruled ; and we shall reverse the decree appealed from, and remand .the cause for further proceedings.. Decree reversed, and cause remanded.