Fadden v. Fadden

Miles, J. This is a bill in chancery to enjoin the defendants from selling on execution the real estate of the plaintiff’s wife. The execution issued upon a judgment recovered by defendants, C. G. & "W. R. Austin, against the plaintiff’s wife, for professional services rendered for her in the adjustment of matters between herself and the plaintiff. The wife acquired title to the real estate levied upon, by regular conveyance from the plaintiff. The deed conveying the land to her was not made to her sole and separate use, and in no way limited the plaintiff’s marital rights, and he then had and still has the possession of the land so conveyed claiming his marital rights to the same. By a stipulation between the plaintiff and his wife, the suit was discontinued as to her and the trial was had with the other defendants. [352] The only claim made by the defendants, and considered by the court below, as stated by the chancellor in the record sent up to this Court, is that the levy, being made subject to the wife’s homestead and the plaintiff’s interest, is valid. The defendants recognize the fact that the land is not the sole and separate property of the wife; nor could the defendants consistently claim otherwise in view of the holdings in Reynolds v. Bean, 91 Vt. 247, 99 Atl. 1013; Barrows v. Dugan’s Estate, 88 Vt. 441, 92 Atl. 927; Bishop v. Chair Co., 85 Vt. 141, 81 Atl. 454, 36 L. R. A. (N. S.), 1171, Ann. Cas. 1914 B, 1163; Rowley v. Shepardson et ux., 83 Vt. 167, 74 Atl. 1002, 138 Am. St. Rep. 1078; Dietrich v. Hutchinson, 81 Vt. 160, 69 Atl. 661; Hubbard v. Hubbard, 77 Vt. 73, 58 Atl. 969, 67 L. R. A. 969, 107 Am. St. Rep. 759, 2 Ann. Cas. 315, and In re Nelson’s Will, 70 Vt. 130, 49 Atl. 750. The wife of the plaintiff was not alone seized of the real estate levied upon as of her sole and separate property, nor was the plaintiff alone seized of it, “but the two were seized jointly in her right.” Reynolds v. Bean, supra. As to such property she is under the common law disability, and is not aided in that respect by any statute. See the cases above cited, and Laird v. Perry et al., 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340; French v. Slack, 89 Vt. 514, 96 Atl. 6, and Citizens Savings Bank & Trust Co. v. Jenkins, 91 Vt. 13, 99 Atl. 2503. At common law a married woman could not make contracts binding herself and her property, and it is only by statute that she can now do so. Her right at law to make contracts and bind herself and charge her property, being given by statute, is measured by the statute giving that right. P. S. 3037 (G. L. 3521) is the only statute giving the right to take her property on execution and that sfatute limits the right to property which she holds to her sole and separate use. The property levied upon not being held to her sole and separate use, was not subject to be taken on the execution in this case. The decree making the injunction perpetual is affirmed and the cause is remanded.