Clopton v. Matheny

SlMRALL, J. : ■ J. II. Clopton purchased, in 1860, for the use of his wife’s plantation, a gin-stand, to be paid for out of the cotton crop of that year. Bickett and Tindall, from — 294 — wliom the purchase was made, transferred the debt to J. M. Matheny. In 1865, Clopton gave his note for the account to Matheny, the complainant, who indorsed it to Miffleton & Odeneal. The indorsees sued the maker and the indorser, and recovered judgment against both. Clopton was pursued to insolvency by the return of nulla bona on the execution. Thereupon, Matheny paid the recovery, and brought this suit in equity to obtain satisfaction from Mrs. Clopton, on the ground that she was the owner of separate property; that the gin-stand was purchased for the use of her plantation, and was so actually employed. The answer of Mrs. Clopton admits her ownership of the plantation, but denies knowledge of the purchase by the husband or his agency for her, or the use of the gin-stand on her land. It is satisfactorily proved, however, that the gin-stand was set up and used on her plantation. The argument is made by the appellants’ 'counsel, that the proofs show that the children of Mrs. Clopton have also an interest in the plantation, and if the property be held liable, the burden should be proportionately distributed between herself and the children. It may be a sufficient answer to that suggestion, to say that Mrs. Clopton sets up no such defense, and nowhere do the parties intimate in the pleadings that there is such joint ownership, and that there should be no such apportionment of the debt. It is sufficient to dispose of this objection, that the proof clearly shows that the wife had the control and exclusive -management of the property through her husband, as her plantation, taking and appropriating its crops and income. An analysis of the 25th art., p. 336, Code of 1857, discovers that certain contracts, that bind the separate estate of the wife, may be made by husband and wife, or by either of them. Other contracts must be made by the wife, or by the husband with her con — 295 — sent. Of the latter class, are those which provide for the comfort, convenience and maintenance of the family; education of the children; for erections and improvements on her property, and work, labor and services for the benefit and improvement thereof. Of the former class are supplies for the plantation, maintenance of the laborers, the employment of an agent or overseer. For these things the husband is made competent to incur obligations to be discharged out of the separate estate. The obligation is incurred by the joint contract of husband and wife, or by the separate act of either of them. Contracts falling within the other classification must be incurred by the wife; if not made directly by her but by the husband, they impose no liability on her property, unless the husband had her consent to act. Contracts, then, for “ supplies” of the wife’s plantation, may be made by either or both. If the “ supplies” are necessary, the husband may contract for them, and satisfaction may be had out of the wife’s property. If the real estate of the wife is used for the production of cotton, a gin-stand is a necessary article for its outfit — a “ supply” in the samé sense as negroes, plows, or work animals. Robertson v. Ward, 12 S. & M. 490. The entire statute, embracing the law respecting “ the separate property of married women,” is remarkably terse, precise and definite in the use of words. It carefully guards the estate from the imprudent control of the husband, leaving, for the most part, the property to be dealt with and managed by the wife, as far as she was competent. In only a single instance can the husband impose a charge upon the estate without the wife’s consent, and that is where her lands are devoted to agriculture; he is entrusted with authority to provide those things necessary to the production of crops, and without consulting her may burden the property with a charge for such necessary “ supplies,” and its — 296 — management. The estate is primarily devoted to the payment, and is bound whether the husband be solvent or insolvent. Nothing would exempt it except a waiver of its liability. Whether the clause of the statute under consideration be interpreted as conferring a power on the husband to create a charge on the estate, or as constituting him an agent of the wife to make such contracts, the result is the same. In either event his contract, within its terms and objects, affects her property. We have several times considered the effect of taking a promissory note for an antecedent debt, whether it shall be treated as an extinguishment or merger, or not. We are content with the principles stated in Guion and wife v. Doherty, 43 Miss. 554, which have been subseqently followed. There, as here, the note of the husband was accepted by the creditor. We held, however, that, unless taken in payment and discharge of the wife’s estate — agreed to be so taken — so that the creditor took the risk of its payment, the wife’s estate was not discharged. Upon the purchase of the gin-stand for the wife’s plantation, her property became immediately liable, and so continued, notwithstanding the charge in the books of Messrs. Beckett & Tindall was made against Mr. Clopton. The acceptance of the husband’s note did not release the wife’s estate, unless it was agreed to be taken in discharge of it. It is the dictate of natural equity, that the trust estate should be liable for all things necessary for its support and productiveness. Indeed, without the benefit of such a principle, its enjoyment and preservation might be greatly impeded; and this, because the cestui que trust may be under legal disabilities. The leading and well-considered case of Carter v. Everleigh and wife, 4 Dess. Eq. 19, is very similar to this. There, the wife’s property was held to be bound, — 297 — although the husband gave his own note for the gin-stand, and the seller, believing him to be the owner of the plantation, had sued upon the note and pursued him to insolvency. In Montgomery v. Everleigh et al., 1 McCord Ch. 267, the complainant had indorsed a promissory note given by the son for corn supplied for the use of the slaves of the cestui que trust, his mother, on her plantation, and had been compelled to pay it. It was held that the indorser was entitled to re-imbursement out of the trust property. A contrary doctrine would be destructive, in many instances, of trust estates, as it would take away all credit, however emergent the need. These propositions are sustained by authority, and are reasonable and just in themselves: First. The estate of Mrs. Clopton, being the recipient of the benefit, is the primary debtor, responsible in the first instance, and ought to pay the debt. The complainant, assignee of Beckett and Tindall, although he transferred the note taken from the husband, having been compelled to pay it to his indorsee, is remitted to his original claim on Mrs. Clopton, and should be allowed to collect out of the estate, where ultimate responsibility belongs. That remedy should be afforded to him, unless (as we have said) he took the husband’s note in absolute payment and discharge of Mrs. Clopton, agreeing to look to the note as the only means of payment, or, in the second place, unless the complainant’s claim against Mrs. Clopton has been barred by the statute of limitations. We do not think that the evidence in this case is sufficient to withdraw it from the control of the rule stated in Guion and wife v. Doherty, 43 Miss., that the note, either of the debtor, or of a third person, is not a payment or extinguishment of an antecedent debt unless received expressly as payment. That is pro — 298 — xiounced to be the settled doctrine in Wyllie v. Collins & Co., 9 Ga. 240, referring to many of the cases. It remains to be considered whether the claim is barred. The purchase of the gin-stand was made in 1860, the precise time not fixed. It was proved by one of the sellers, Tindall, that the rule or custom was to be paid out of the cotton crop of the year. In 1865, Mr. Clopton gave his note for the account to the complainant, which had been assigned to him by Beckett and Tindall, in payment of their indebtedness to him. Complainant indorsed the note to Miifleton and Odeneal, who brought suit against the maker and indorser to October term, 1866. Judgment was recovered against both at the May term, 1867. What influence shall be given to the fact that Clopton gave his note in 1865, and to his connection and agency in the transaction generally ? If the better interpretation of the married woman’s law be (as we think it is), that the husband is constituted an “ agent ” by the statute to provide “ supplies ” for the wife’s plantation, it becomes important to fix the extent of his authority. The text is, “ all. contracts made for supplies.” Suppose the contract be to pay four years after delivery, or upon other terms as to time, would the wife be heard to say that as to her the debt was barred after three years ? The words are of broader meaning than “ that the husband may purchase ‘ supplies’ ” : “ all contracts,” implying that it is referred to discretion or necessity, as to the market price and time of payment. If the husband give his note, payable one, two or four years hence, is not that a valid contract within the statute, as much so as if the wife had made her note of like tenor ? Whatever contract the wife may make for plantation necessaries,'the husband may make under the statute. If the husband, by virtue of his statutory agency, buys without the — 299 — wife’s knowledge, she is bound; so, too, she is bound by his contract as to price, unless very unreasonable and extravagant (so as to amount to a fraud upon her rights); so, also, as to time. If the statute meant to put the husband in the wife’s stead, as to this class of contracts, we are incliñed to think that in this case, where the husband was intrusted with entire control of the property and its proceeds, using both very much at his pleasure, exclusively in the habit of contracting for “ supplies,” the wife cannot set up the bar of the statute, if, before it has attached, as in this case, he procures an extension of the debt upon his promise to pay in the future. But, whether correct in this view or not, and upon that it is not necessary to express an authoritative opinion, we do not think that the claim is barred on the theory of the appellants, as to the statute of limitations. The testimony of Tindall is, that the rule of his manufacturing company was to sell gin-stands payable out of the first crop ginned upon it. Clopton says, in his deposition, that the gin was bought some time in 1861. The bill states the date in 1860. Assuming the latter as the time, and that the debt would be due 1st January, 1861, when would be the close of the ginning season, and there elapsed from that time until December, 1862, when the legislature passed the suspension act, one year and eleven months, the limitation began to run again 2d April, 1867. The day upon which suit was brought (i. e., bill filed) is not shown in the record, but it does appear that the subpoena was issued 28th January, 1868, which could not go out until after bill was filed. From the 2d April, 1867, to 28th January, 1868, is nine months; add that to the time which elapsed before the statute was suspended, and we have two years and eight months, so that the three years set up as a bar, computing from the 1st of January, 1861, until this suit was brought, — 300 — had not expired. That relieves the case of all difficulty on the score of the statute of limitations. John H. Clopton set up his discharge under the bankrupt law, and exhibited his certificate of discharge. It was error to render a decree for the debt against him. We are of the opinion, that as the gin-stand was purchased for and used upon the plantation of Mrs. Clopton, she, through her separate estate, was the real primary debtor, and the' complainant, the assignee of the original debt, is entitled to satisfaction for it out of her separate estate. So much of the decree as orders and directs payment by Mr. Clopton is reversed. The balance of the decree against Mrs. Clopton is affirmed.