DeBaun v. Van Wagoner

Sherwood, Judge, delivered the opinion of the court. This was a proceeding in the nature of a bill in equity, to subject the separate estate of a married woman to sale. The petition in substance alleges: That Mrs. Yan Wagoner was possessed of certain real estate, situate in the city of St. Louis, to and for her sole use; that John M. Krum was the trustee, in whom was vested, for the exclusive benefit of Mrs. Yan Wagoner, the legal title to said estate; that said cestui que trust claimed an interest in certain leasehold property, and, as ah inducement to plaintiff to purchase the same, promised in writing that, if he would do so, she would pay the taxes on said last named property for the year 1861, and all years prior thereto; that, relying on such promise, plaintiff made the purchase, but defendant failed and refused to pay said taxes in accordance with her said agreement, and plaintiff in consequence was compelled to pay the taxes for a number of those prior years, inclusive of 1861, on the property thus purchased; that defendant did by her said promise in writing set apart and pledge her- separate estate for the payment of the sum which plaintiff had been compelled to pay in satisfaction of such taxes. The petition concludes with a prayer for the sub [349] jection of the separate property of the cestui que trust to the payment of the amount so as aforesaid expended, and for other relief. The defendants demurred to this petition, assigning a number of grounds, which were all in reality comprehended in the first ground assigned, that the petition did not state facts sufficient to constitute a cause of action. js. The court overruled the demurrer, and, the defendants declining to plead further, judgment went as prayed in the petition, and this cause is here on appeal. It is the well settled law in this State, that if a married woman,who is possessed of real estate for her sole use, executes a promissory note, it will be presumed that she intended to charge her separate property with the payment thereof; for, unless such presumption should prevail, her act of executing the note would be altogether without' meaning. And it makes no difference in point of principle, that the instrument which she executes, and whereby she promises to pay a sum of money, does not assume the shape of a note of hand. Her intention to bind her separate estate will, in the absence of anything to the contrary, accompany her act, as. well in the one case as the other. The power of a feme covert to charge her separate property is an inevitable sequence of the doctrine of courts of equity, that in respect to such property she is a feme sole. Hence it follows, that in contemplation of. equity a married woman is as completely clothed, so for as regards her separate estate, with the jus disponendi as any other property owner. The petition in this case expressly alleges, that she intended by her written instrument to bind her separate estate, and this allegation as well as the other statements of the petition the demurrer confesses to be true. The judgment is affirmed. The other judges concur.