Futch v. Jeffries

Campbell, J., delivered the opinion of the court. The fact that the case had been set down for hearing did not preclude the court from striking out papers not proper to be considered in the hearing of the case. There was no necessity for remanding to the rules before exerting this power. It was right to strike out the amended answer and cross-bill and refuse permission to file it, for the double reason that no sufficient showing was made to authorize it, and it contained nothing to vary the rights of the parties as presented by the pleadings sought to be amended. That Mrs. Glover’s estate in the land incumbered for the separate debt of her husband was in expectancy, and not in possession, did not exclude it from the restriction of § 1778 of the Code of 1871, and the incumbrance she put on it was not binding beyond the amount of her income, as provided by that section. The estates of married women with respect to which they could act as if unmarried, prior to the Code of 1880, were those settled upon them in terms which excluded the marital rights of the husband and vested estates to the sole and separate use of the wife, free from the control of the husband. It was held that the statutes regulating the rights of married women as to their separate property did not apply to property to which, without such statutes, they were entitled, and with which they were empowered to deal as if not married. The statutes embraced all estates dependent on them for a determination of the right of the wife with respect to them, and did not apply to such as she would have the right to control, if the statute did not exist. Such estates were called “ equitable,” not as regards title, but as descriptive of the kind of estate with which courts of chancery empowered a married woman to deal, independently of her husband. Frierson v. Williams, 57 Miss. 451, and cases cited. The estate of Mrs. Glover was not vested in her to her sole and separate use, and [513] was not such as, before the statutes referred to, she would have been entitled to deal with according to the rules of equity, and therefore it was subject to the operation of the statute cited. Upon the facts of the case we are not disposed to disturb the conclusion reached by the Chancellor. jDecree affirmed.