Frierson v. Williams

George, C. J., delivered the opinion of the court. /The plaintiff in-error filed his bill in the Chancery Court of Coahoma County against John Williams and his wife for the purpose of collecting out of the separate estate of Mrs. Wil — 459 — liams a note for six thousand and fifty dollars, made by Williams and wife, in February, 1873, payable to the order of Williams, the husband, and by him indorsed to the plaintiff in error for money then advanced by the latter to said Williams. The note was made at New Orleans, in the State of Louisiana, where Williams and his wife reside. The property sought to be charged with the debt is land situated in Coahoma County, and is the separate estate of Mrs. Williams, under a devise made to her by her sister, Mrs. McGuire, who died in 1868. By her will she provided as follows: “ My whole estate, real and personal, shall go to my sisters, Ellen Mayes, wife of R. B. Mayes, and Louisa Williams, the wife of John Williams, for and during their natural lives ; and this bequest is to their sole and separate use, in which their husbands respectively shall have no right or interest.’’.^-The will then proceeds to dispose of the remainder, after the termination of the life estate, to the children of the two devisees. The object of the bill is to enforce collection of this note out of the land of Mrs. Williams, devised under this will; and the position of the complainant is, that Mrs. Williams holds this property as her separate estate by virtue of the will alone, and unaffected by the statutes of this State on the subject of the property of married women ; and that the power of Mrs. Williams to charge this separate estate is to be determined, not by the provisions of those statutes, but by the general principles of equity in relation to the separate estates of femes covert, held under settlements, or other instruments. On the other hand, it is contended that the estate devised by the will is a legal estate, and the wife’s power over it, in the absence of any specified grant of larger powers in the will, must be regulated by the statutes alone; and that the doctrines of courts of equity in relation to the separate property of married women are applicable alone to equitable estates. It has heretofore been settled in this State that the statutes on the subject of the property of married women do not fix and regulate the powers of femes covert as to equitable separate estates held by them. Musson v. Trigg, 51 Miss. 172 ; Doty v. Mitchell, 9 S. & M. 435 ; Montgomery v. Agricultural Bank, 10 S. & M. 566 ; Andrews v. Jones, 32 Miss. 274; Block — 460 — v. Cross, 36 Miss. 549. We think it equally clear that the same rule should apply when the instrument creating the separate estate fails to appoint a trustee for the wife, whereby her estate is legal, and not equitable. Prior to the enactment of the statute protecting married women in their property, this will would have vested in Mrs. Williams a separate estate to her sole use, and free from the control of her husband. And under the rules of the Chancery Court in England, recognized by the latest cases in this State, the wife would have had the power of charging her estate, as if she had been a feme sole. Block v. Cross, 36 Miss. 549 ; Garrett v. Dabney, 25 Miss. 335 ; Musson v. Trigg, 51 Miss. 172; Levy v. Darden, 38 Miss. 57. The statute was designed, not to restrict, but to enlarge the rights and powers of married women as to property owned by them at the time of their marriage, or subsequently acquired. It secured her property to the wife by cutting off the marital rights of her husband, as they existed at common law. It was designed to operate only when, by the terms 'or mode of the acquisition of property by the wife, the husband would, as husband, acquire either the entire or a partial interest in it; and as to that property, to fix and secure the rights of the wife and her dominion over it. It was no part of the purpose of the statute to interfere with the recognized power of the wife to acquire and hold a separate estate under instruments creating it according to the rules then recognized by courts of equity. As to such separate estate, the statute is silent, and left the wife’s interest to be fixed and regulated according to the terms of the instrument under which she claimed. The will of Mrs. McGuire secures to Mrs. Williams a separate estate, which a court of equity would recognize and protect if our statutes on the subject had never been passed. In that case she would have had the power to charge the estate by her contracts, according to the rules which courts of equity had recognized and established in relation to such estates. The fact that there is no trustee appointed to hold the legal title would have made no difference. A court of chancery would have treated the husband as trustee (Kenley v. Kenley, 2 How. 751), and, at all.events, would secure her the rights — 461 — intended by the testatrix. That the statutes of the State have enlarged her ability to take the legal title can make no difference. To hold that it would diminish her rights and powers would be to make the statute work an injury instead of a benefit to the wife. These views are in accordance with the opinions of the Supreme -Court of Alabama. Pickens v. Oliver, 29 Ala. 528 ; Cannon v. Turner, 32 Ala. 483. There is nothing in the statute prohibiting these settlements to the separate use of the wife. On the contrary, the plain intent of the statute is to secure her a separate estate where the instrument under which she derives title would not without its aid produce that effect. If it be held that the statute intended to regulate her rights when there is a settlement securing her a separate estate, it would in effect destroy her . capacity to take' under a settlement, there being nothing, in that view, which could be regulated by such an instrument. 'There is as little foundation for the view that the statute intended to regulate her power of disposition, when the instrument creating the separate estate failed to point out any specific mode of alienation ; for under the later cases in this State no mode of disposition is necessary to be specified in the settlement, the power of disposition being that of a feme, sole, and resulting not from an express grant of it eo nomine, but from the fact of ownership. But it is said that the powers of the wife as to her separate estate were only conceded when the estate was equitable. We do not perceive the force of the distinction. The wife’s power of disposition relates to her ownership, not to the nature of her title, and it is not seen how her power would be diminished by the fact that she had a complete legal title and full ownership instead of a mere equity. The inquiry on this point is as to the ownership of a separate estate by the wife, not as to the nature of the title, whether legal or equitable. When she has ownership, then, as an incident to it, she has the jus dis-ponendi. She is never obliged to look to the statute for her power to contract and charge.her estate except when she must look to it for her title. Here the wife need not refer to the statute. The devise is to her sole and separate use, in which her “husband shall have no right or interest.” The — 462 — words employed not only indicate her separate right, but exclude all right or interest in the husband. All his rights, of whatever nature, including his right of management and control, are expressly excluded. / It is next insisted that by the law of Louisiana the promissory note of the wife, made as surety for her husband, is void for want of the capacity of the wife to enter into such a contract, and that, being void by the lex loci contractus, it is void everywhere. This position is true, if the giving of the note has no other effect than what it purports to have on its face, viz., a personal obligation of the wife. But it is charged in the bill and admitted by the demurrer, that at the time this note was made in Louisiana the wife had a separate estate in realty, situated in this State, and that she contracted with referehce to this separate estate, and intended to charge it by the promissory note in controversy. Whether this purpose can be carried out with reference to realty here, notwithstanding the fact that the note is void by the law of Louisiana, is the question presented for our consideration. The note, if made here, would be equally void by our laws to bind the wife personally ; yet, notwithstanding this, it would be held, if made with the intent and purpose alleged in the bill, to be a valid charge against her separate estate situated here. It is generally true that the capacity of a married woman to make a contract will.be determined by the law of her domicile ; but this is not the rule when her contract relates to her estate in realty, situated in another jurisdiction. Judge Story says : “ The general principle of the common law is that the laws of the place where such [immovable] property is situate exclusively govern in respect to the rights of the parties, the modes of transfer, and the solemnities which should accompany them. The title, therefore, to real property can be acquired, passed, and lost only according to the lex rei sitce.” Story Confl. Laws, § 424. And quoting from Sir William Grant: “ The validity of every disposition of real estate must depend upon the law of the country in which that estate is situated; ” ■he says “ The same rule would also seem equally to apply to express liens and to implied liens upon immovable estate.” Mr. Burge, as quoted by Judge Story, in a note to § 445 of the — 463 — same work, says: “ The power to alienate immovable property by contract w'as a quality impressed on .the property; ,that the law from which it was derived, or by which it is regulated, was a real law; and that the existence of this power and the validity of its exercise. must be decided by the law of the country in which the property was situated.” And it is said by a learned author: “No sovereignty can permit the intrusion on its soil of a foreign law. Such a law may be accepted by comity in cases in which a contested issue, the law applicable to which is foreign, comes up for determination in a home court. But the imposition of any other law than the lex rei sitce as to property, would be to give foreign subjects and foreign laws an absolute control, unchecked by any discretion of the home courts, over a subject-matter essential not merely to the independence, but the vitality of the state. . . . The mischief is cured by the adoption of the rule lex rei sitce regit; whoever may be the owner, or wherever the contract was made, the law of the land reigns. No other lawq either as to the transfer or control of the property, is to intrude.” Wharton Confl. Laws, §§ 278, .280. These rules apply to marital rights in realty. Judge Story, after speaking of the rights of husband and wife as to personal property situated beyond the matrimonial domicile, says :. “ But real or immovable property ought to be left to be adjudged by the lex rei sitce as not within the reach of any extra-territorial law ” ; and in Vertner v. Humphreys, 14 S. & M. 130, 143, this court said that: “ As to immovable property, the law of- the place where it is situated fixes the rights of husband and wife in it.” The application of these principles will furnish a safe solution of the question under consideration. The capacity of Mrs. Williams to take this property, and her rights and powers over it, are derived from and regulated by the law of this State. Her power of disposition and dealing with it are, by our laws, impressed on the property itself. As to none of these things has the law of Louisiana the slightest influence. If she had made a contract expressly disposing of this property, it will not be denied that, though void by the laws of Louisiana, either for her want of capacity to act, or the want of the observances of the forms and solemnities prescribed by — 464 — those laws, yet, if valid by the law of this State, it would have been good. The contract here is not strictly of that character, yet the making of it is the exercise of the power of the wife to dispose of her estate ; for whenever that power is denied, the power to charge it with her debts is denied also, and the charge can only be made effectual by the actual or threatened alienation of the estate, under a decree of the Chancery Court. The charging of her separate estate for the payment of money does not pass any actual interest in the land, but it is the first and essential step for a judicial disposition of the estate to satisfy the charge, and the exercise of a power of administration and control over it, which, as we have seen, is governed solely by the lex rei sites. To show that this is its true nature, we have only to suppose that, by the law of Louisiana, the note was a charge on her realty situated there, and was not by our law a charge on the realty situated here. In such a case, it would be evident that an attempt to enforce it here against her real estate could not succeed. If success could attend such an effort, then the several rights and powers of husband and wife, as to realty, would not be fixed and governed by the laws of the situs; and the act of a wife, done in a foreign State, would have the effect of disposing of her realty here, contrary to our laws. But there is no real conflict between the laws of Louisiana and Mississippi in reference to the contract. By both laws the note is void for what it purports to be on its face, — a personal obligation of the wife ; and it is void for the same reason in both, viz., the personal incapacity of the wife. The difference between the two laws is as to the effect on the real property of the wife in the respective jurisdictions of the two States, and as to which, as we have above seen, the law of the State in which the realty is situated is the exclusive test. If the note had not been void by our laws, as the personal obligation of the wife, we should nevertheless, out of comity to a sister State, adjudge it void to that extent, if attempted to be enforced here ; but the principle of comity does not require a State to regard the laws of any other State, so far as they may affect contracts in relation to real estate situated in the former State, Decree reversed, demurrer overruled and cause remanded.