Withers v. Sparrow

• Decision Date: 31 January 1872
• Citation: 66 N.C. 129
• Court: North Carolina Supreme Court
• Parties: M. M. WITHERS, Exr'x v. T. W. SPARROW and wife, et al.

66 N.C. 129

M. M. WITHERS, Exr'x

v.T. W. SPARROW and wife, et al.

Supreme Court of North Carolina.

January Term, 1872.

The separate estate of a feme covert, is chargeable with her contracts, for money borrowed with the assent of her trustee, upon the credit and for the improvement of such estate, although the estate is not charged by, or referred to, in the contract.

The case of Draper v. Jordan, 5 Jones' Eq., 175, cited and approved.

This was a bill in equity, filed under the former system by the plaintiff as executrix of the will of S. M. Withers against T. W. Sparrow, Martha L. Sparrow, his wife, and James M. Hutchison.

Mrs. Sparrow was entitled to a separate estate in Lancaster District, S. C., and having removed to this State, she, with her husband, filed a petition for the purpose, and obtained the appointment of, the defendant Hutchison, as trustee, in this State.

The cause was regularly transferred, and issues embracing the salient questions of fact in dispute were submitted to the jury at July Special Term 1871, of Mecklenburg Superior Court, His Honor Judge Moore presiding. The facts are sufficiently stated in the opinion of the Court.

His Honor granted a decree in favor of the plaintiff, and directed the property itself to be sold, &c.

From this decree the defendants Sparrow and wife appealed.

J. H. Wilson for the plaintiff .

Property in the hands of a trustee, for the sole and separate use of a feme covert, and subject to her absolute disposal, will be held liable in a Court of Equity, for any debt she may contract, with an understanding, express or implied, that they are to be paid out of such property. Frazier v. Brownlow, 3 Ire. Eq., 237.

The separate estate of a married woman is not liable to her personal engagements generally, but only when the debt is charged specifically upon her separate estate, with the concurrence of the trustee. Johnston v. Malcolm, 6 Jones' Eq., 120. Draper v. Jordan, 5 Jones' Eq., 175.

Guion, Vance and Dowd for the defendant .

Every contract of any nature, entered into by a feme covert, without the assent of her husband, express or implied, is void. She may not be sued at law on her contracts. If she have a separate estate, before she can charge it at all, the assent of her trustee is necessary, and the English rule in this State, is modified in Frazier v. Brownlow, 3 Ire. Eq., 237, Draper v. Jordan, 5 Jones' Eq., 175, Johnston v. Malcolm, 6 Jones' Eq., 120.

The note or bond of a feme covert is not negotiable, for the reason, that from its very nature, it is payable out of a particular fund or estate. Negotiable paper must carry with it a personal and certain credit given to the drawer, not confined to anything or fund; it is upon the credit of the person's hand, or the person who negotiates it. John Dawkes, and Mary his wife v. Lord DeLoraine, 3 Wilson, 207.

In Francis v. Wizzell, 1 Madd., 258, “That the Court has no power against a feme covert in personam; but that if she has separate property, the Court proceeds against that. In all cases the Court must proceed in rem against it. There is no case in which the Court had made a personal decree against a feme covert, and though she may pledge her separate property, and make it answerable for engagements, yet no decree can be rendered unless the trustees are parties to the suit.

In Adams on Equity, marg., p. 45, “Her disability to bind herself or general property, is left untouched; but she may pledge or bind her separate propety, and the Court may proceed in rem against it, though not in personam against herself.” The rest of the doctrine in Adams, is modified in this State by the cases above cited, and the case of Frazier and Brownlow mentioned in the note.

See Pearson's views in dissenting opinion in Harris v. Harris, 7 Ire. Eq., 123.

If she may pledge or bind her property by her contracts, she may specially designate in that contract, what is to be put in pledge or mortgage. She may dispose of the whole, but that does not require that she must dispose of her whole trust estate, at once; she may do so in parts, and at different times, and to different persons. In Story, § 1399, “her separate estate will be, in equity, held liable for all the debts, charges, incumbrances and other engagements, which she does expressly, or by implication, charge thereon, for having the absolute power of disposing of the whole, she may a fortiori dispose of a part thereof.”

The plaintiff in this case cannot take a decree, unless she shows an express purpose to charge the separate estate, and that assented to, by the trustee. The note alone is insufficient in this State, by Frazier and other cases cited above, also in Pearson's dissenting opinion, now the law, in this State.

Accompanying the note, and executed with it, was a written direction to Mr. Hutchison, the trustee, to pay it out of the South Carolina trust money, when it should be received. To this he assented, and the South Carolina trustee, had also agreed to the same disposition of the funds, in his hands. That fund has not yet been received, and by the case in 3d Wilson, the debt is not payable, as yet, by trustee.

The evidence discloses, that Mr. Withers in lending the money, looked solely to the South Carolina fund for repayment, that be took as his security, and if that has proved insolvent, it is his misfortune, and he stands, as very many others have found themselves, as regards their securities.

The judge rendered his decree on the ground of a general equity. That there was a lien, or that plaintiff had a right to pursue the land improved by the investment of the money he had loaned to Mr. Sparrow, and for which in the first instance he had taken his note.

In this case, however, there is no rule in equity, justifying such pursuit. No fraud is alleged; no trust fund has been charged by a breach of trust; nothing converted by the trustee, and no room is afforded for raising an implied trust. “Express trusts are raised and created by the acts of the parties, either by word or writing, but an implied trust is never raised, unless taking all the circumstances together, that is the fair and reasonable interpretation of their acts and transactions.” Story's Eq., § 1195.

Now the words, writings, acts and transactions of these parties expressly rebut all idea, that the property at Davidson College, was, in any way, to be bound for the debt.

In this State, no lien for the purchase-money itself, much less will there be a lien for money applied to the improvement of the land. Campbell v. Drake, 4 Ire. Eq., 94.

W. H. Bailey (representing the children) submitted the following brief :

I. It is submitted that the whole current of American authorities, shows, that a married woman, cannot, in any manner, charge her separate estate, unless the instrument creating the estate, also confers in terms, the power.

Her common law incapacity, remains, unless removed by a power.

Such was the doctrine held by chancellor Kent, in Methodist Church v. Jacqaes, 3 Johns, Ch. Rep. 78, a decision which has been cited and approved in many other States.

The same doctrine prevails in South Carolina. Ewing v. Smith, 3 Desaussure, 417, on appeal, reversing the Chancellor, which was re-affirmed in Reid v. Lamar, 1 Strob. Eq., 27. Calhoun v. Calhoun, 2 Strob. Eq., 331-- also, in New York. L'Amoroux v. Van Ransellaer, 1 Barb. Ch., at p. 37., in Penn. Rogers v. Smith, 4 Barr, 92 ; in Tenn., Morgan v. Elam, 4 Yerg., 375 ; in Miss., Doty v. Mitchell, 9 Sm. & M., 435 ; Montgomery v. Agricultural Bank, 10 Ibid, 567 ; in Texas, Magee v. White, 23 Texas, 180 ; vide also, dissenting opinion of Pearson, J. Harriss v. Harris, 7 Ired. Eq., 111 ; in Virginia, Williamson v. Beckham, 8 Leigh, 20 ; in Rhode Island, Metcalf v. Cook, 2 R. I., 355 ; in Maryland, Tarr v. Williams, 4 Md. Ch. Decisions, 68. Williamson v. Donaldson, Ibid, 414.

II. If, on the contrary, the doctrine of the English Courts is the true one, then as it proceeds on the idea that quoad her separate estate, she is sole, all the incidents appertaining to an estate held by a feme sole must follow: and hence she is entitled (1) to a homestead, it being a pure trust. (2.) And such homestead is no more liable for the plaintiff's debt, (a mere loan,) than any other homestead would be.

It is not the purchase money, as the estate, had already been purchased.

III. Mrs. Sparrow, as expressly shown by the pleadings, has but a life estate; and as her children are not made parties (1) no decree can be made affecting the remainder limited to them, (2) and the doctrine held in some Courts that a feme covert can charge her separate estate, being a creature of equity, should be moulded to suit the convenience of mankind, and should be confined, it is submitted, to cases where there is an unlimited jus disponendi.

IV. I submit that the doctrine of the English Courts even, is only applicable where a separate estate is crested--a naked estate, if I may coin an expression--without restrictive or explanatory expressions, accompanying its creation.

The doctrine is based upon the execution of a power--“implied power”--as the present Chief Justice puts it in Harris v. Harris, cited supra.

The learned STORY thus explains the principles of the English doctrine:

“But, in the second place, her separate estate will, in equity, be held liable for all the debts, charges, encumberances and other engagements, which she does expressly, or by implication, charge thereon; for, having the absolute power of disposing of the whole, she may, a fortiori, dispose of a part thereof. Her agreement, however, creating the charge, is not, (it has been said,) properly speaking, an obligatory contract; for, as a feme covert, she is incapable of contracting; but is rather an appointment out of her separate estate. The power of appointment is incident to the power of enjoyment of her separate property; and every security thereon, executed by her, is to be deemed an appointment, pro...