Alexander Et Ux v. Alexander

• Decision Date: 23 August 1888
• Citation: 7 S.E. 335,85 Va. 353
• Parties: Alexander et ux. v. Alexander et al., (two cases.)
• Court: Virginia Supreme Court

7 S.E. 335

(85 Va. 353)

Alexander et ux.

v.Alexander et al., (two cases.)

.Supreme Court of Appeals of Virginia.

August 23, 1888.

1. Partnership—Power op'Partner to Bind Firm—Confession op Judgment—Seal. Although one partner cannot usually bind his copartner by an instrument under seal, a sealed power of attorney to confess judgment, executed in behalf of a firmby one member, will be held valid as to the other members on collateral attack of the judgment, when there is no proof that they were not consenting to its execution, as it is not necessary that such a power be under seal.¹

2. Same—Actions against Partners—Equity—Parties—Multifariousness.

A bill to subject real estate of the members of a firm consisting of M., J., and B. to the payment of two judgments, one against the firm and one against J. and B., is not multifarious as to M., as he is interested in having the real estate of his part ners subjected to the payment of the firm debts rather than their own.

3. Appeal—Extent of Appeal—Consolidated Actions.

A wife and her husband filed a bill to subject real estate of judgment debtors of the wife to the judgment. One of the debtors filed a bill to have the wife's property declared liable for her husband's debts, and to have a judgment against the husband set off against the wife's judgment. The causes were heard together, and decree rendered in both suits, adjudging, among other things, that the property was the wife's separate estate. Held, that an appeal by the wife brought up both causes for review.

4. Husband and Wife—Wife's Statutory Separate Estate.

Under the Virginia "Married Woman's Act, " (Acts 1876-77, c. 329, p. 333,) a wife is entitled to a legacy due her from her father's estate, which did not come into her possession until after the passage of the act; to damages awarded for the taking of her separate real estate by a railroad company; to the profits of her business as a separate trader carried on with her husband's consent, and to the rents, issues, and profits of her separate estate.

5. Same—Property Rights op Husband—Constitutional Law—Vested Rights.

A husband's inchoate right to curtesy, and to redeem his wife's choses in action, are not vested rights, and may be interrupted by legislative enactment.

6. Same—Actions—Against Husband's Firm.

Under such act a wife may sue a firm of which her husband is a member, and when the action is founded upon her separate statutory estate it is not an objection to the judgment that it was rendered in favor of both husband and wife, he having joined with her simply in obedience to the act.⁸

Appeal from circuit court, Pulaski county.

Action by James C. Alexander and Sue J. Alexander, his wife, against J. B. Alexander & Co. and others, to subject real estate of the defendants to the payment of a judgment owing by them to Sue J. Alexander. The defendants filed a bill praying that a judgment held by them against James C. Alexander be set off against her judgment, and that her real estate be subjected to the payment of any balance remaining unpaid. Prom a judgment for defendants Sue J. Alexander appeals.

Walker & Poage, for appellants. Mr. Wysor, for appellees.

Hinton, J. As this case involves to some extent the construction of the act of assembly passed April 4, 1877, entitled "An act securing to married women, on conditions, all property acquired by them before or after marriage, " (see Acts 1876-77, c. 329, p. 333,) it is deemed advisable to set out in detail the sources from which the property claimed as the separate estate of the female appellant was derived. On the 6th day of May, 1874, as fully appears by the record, Sue J. Boyd, a feme sole, received as a legatee of one Ann Davidson the sum of $1,000, which, very soon after, to-wit, in May, 1875, she loaned to H. Alexander, taking his bonds therefor, with J. B. Alexander as his security. And for this debt, with accrued interest, she subsequently, to-wit, in April, 1881, took a new bond from these same parties;and this latter bond it is which is the foundation of the larger of the two judgments hereinafter mentioned. In the month of March, 1874, Andrew Boyd, the father of the said Sue J., died, having bequeathed to her a legacy of $800, subject, however, to a deduction of $177, the value of a horse, bridle, and saddle, which she had received as an advancement; which horse, with his equipments, seems to have been soon disposed of, exactly in what way does not appear. At the death of the testator, her father, his family consisted of his wife, this daughter, Sue J., and two unmarried sons, John and Andrew; his six other children having homes away. After the death of the testator, the widow and her said three unmarried children continued to reside on the farm; the said children leasing the farm and personal property from the widow for a merely nominal sum, and farming in partnership. On the 30th of December, 1875, this Sue J. Boyd intermarried with James C. Alexander, a brother of the Alexanders herein mentioned. In November, 1878, she received the sum of $256, a part of the legacy derived from her father, and the same was loaned by her to the firm of J. B. Alexander & Co., composed of J. B. Alexander, M. J. Alexander, and' her husband, J C. Alexander, with H. Alexander as security; and this debt is represented by the second and smaller judgment mentioned in this suit. In April, 1881, she received the residue of said legacy, amounting to $367; but what disposition was made of it the record does not disclose. Upon the death of her mother, in February, 1880, Mrs. Alexander became seized and possessed in fee of a one undivided ninth part of a tract of land situated in Pulaski county, containing 450 acres, and worth about nine or ten thousand dollars; and shortly thereafter the said Sue J. and her brothers, John and Andrew, bought out the shares of the other children, and received conveyances therefor, —the interest of Mrs. Alexander being conveyed to her sole and separate use, free from the control and debts of her husband. By these conveyances, and the devise of her father, Mrs. Alexander and her two brothers became the owners of all the real estate of which her father died seized, —each owning one undivided third. And in making her purchase of two-ninths of this property it is admitted that she never received from her husband, directly or indirectly, one dollar in money, labor, or assistance of any kind or character. Indeed, so far from receiving assistance from her husband, the record shows that she gave him several hundred dollars to aid him in his business schemes, and herself provided for her family. About this time, in 1881 or 1882, and probably before she had entirely finished paying for her two-ninths of this land, she also received $232, as her distributive share of the personal property which her father had bequeathed to her mother as her absolute property, and $700, her one-third of the land damages assessed for the right of way for a railroad which it was proposed to run through this farm. On the 23d of October, 1883, the said H. Alexander and J. B. Alexander, acting through their authorized attorney in fact, confessed a judgment for the amount of the Davidson legacy, which they had borrowed, and interest; and on the same day the said J B. Alexander, M. J, Alexander, and J. C. Alexander, composing the firm, through the same attorney, acting under the same power of attorney, confessed a judgment on the said bond for $256, which, as we have seen, Mrs. Alexander had loaned that firm. Each of these confessions of judgment was in favor of J. C. Alexander and Sue J Alexander, the husband being joined for conformity. On the 22d of October, 1883, the said H. Alexander recovered a judgment against the said J. C. Alexander for $882.86 and costs.

Such being the posture of affairs, at February rules, 1885, James C. Alexander and Sue J. Alexander filed their bill against J. B. Alexander, H. Alexander, M. J. Alexander, and J. C. Alexander, the judgment debtors of the said Sue J. Alexander, to subject their real estate to the satisfaction of her said judgment. At the same rules the said H. Alexander filed his bill against the said J. C. Alexander, Sue J. Alexander, and A. Boyd, in his own rightand as executor of his father, A. Boyd, Sr. The object of this last-named suit was to have all the property of Mrs. Sue J. Alexander, real and personal, declared liable for her husband's debts, and to have the judgment of H. Alexander against J. C. Alexander set off against the judgment of Site J. Alexander v. H. Alexander et al. J. B. and H. Alexander answered the bill of J. C. Alexander and Sue J. Alexander, and, while admitting the justice of the debts against them, they claim that James C. Alexander is wholly insolvent, and insist on their right to set off their judgment against J. C. Alexander against the judgments of Mrs. Alexander against them. The bill of H. Alexander was answered by Mrs. Alexander. Her answer, after setting forth the facts, denies that her property, real or personal, or any part of it, is liable for her husband's debts, or that the judgments against her husband can be set off against her judgment against H. Alexander et al. The causes were heard together, and the circuit court, at the October term, 1885, thereof, rendered a decree setting apart to Mrs. Alexander the two judgments in favor of J. C. Alexander and wife, and the bond for $425, executed by J. B. Caddell, to whom she had loaned that much of the money received by her as damages from the railroad company, as the wife's equity, free from liability for the debts of her husband; but providing that J. B. Alexander and M. J. Alexander, principals, and H. Alexander, security, should be relieved from the payment of one-third part of the principal and interest of the judgment for $256, with interest from the 1st day of January, 1878; and this decree then proceeded to otherwise adjudge the rights of J. C. Alexander in the property of his wife....