Appeal
from the Second judicial district court, Ormsby county.
HAWLEY
C.J.
On the
thirteenth of June, 1881, Oliver Roberts and his wife, Louise
C. Roberts, made, executed, and delivered to respondents a
promissory note for $900. The consideration of this note was
the satisfaction by respondents of a judgment previously
obtained against Oliver Roberts for the sum of $800, and the
sale by them of a certain stock of liquors, saloon fixtures
and supplies, valued at $1,000, to Mrs. Roberts. As
collateral security for the payment of the note, Mrs. Roberts
indorsed and delivered to respondents a note for $5,000
secured by a mortgage upon certain real estate in Carson
City, Nevada, this note and mortgage being her separate
property. This action was commenced to foreclose said note
and mortgage and to subject the proceeds of the sale of the
mortgaged premises to the satisfaction of the $900 note. At
the close of plaintiff's testimony the defendants moved a
nonsuit upon the grounds--
"That
the evidence for the plaintiffs shows conclusively that the
whole transaction, on the part of Mrs. Roberts, was simply
one in which she undertook to become a surety for the
antecedent debt of her husband, Oliver Roberts, and that said
undertaking on her part is not evidenced by any note or
memorandum in writing, expressing the consideration for the
undertaking, as is required by the statute of frauds."
This
motion was overruled, and the trial resulted in a judgment in
favor of respondents. Mrs. Roberts alone appeals.
Can the
contract of Mrs. Roberts be enforced under the laws of this
state? The general legal doctrine that the civil existence of
the wife is merged into the legal life of the husband, and
divests her of all power to hold property in her own
individual right, resulted in England in the establishment of
certain equity rules which invested her with power to enjoy
and hold a separate estate, and to alienate it. The question
then arose as to the nature and extent of her authority over
it.
The
leading case of Hulme v. Tenant, 1
Brown, C. C. 16, was brought by the obligee upon a joint bond
by husband and wife to recover a
sum of money out of the separate property of the wife. Lord
THURLOW, in rendering his opinion, said:
"I
have no doubt about this principle, that, if a court of
equity says a feme covert may have a separate
estate, the court will bind her to the whole extent as to
making that estate liable to her own engagements, as, for
instance, for payment of debts," etc.
The
rule in England is well settled that a feme covert
is to be regarded in equity as a feme sole with
respect to her separate estate, with power to dispose of it
as she pleases, unless specially restrained by the instrument
under which she acquires the estate. She is, by the
settlement of such separate property to her use, clothed with
the absolute jus disponendi incident to ownership.
In the
United States there is no settled rule upon this subject. No
question has ever been presented to the courts of this
country which has brought out such a conflict of opinion
among the ablest and most distinguished jurists of the land.
In
Ewing v. Smith, 3 Desaus. Eq. (S.
C.) 417, Chancellor DESAUSSURE, in tracing the doctrine from
its first appearance in the courts of equity to the year
1811, said:
"By
the simple rules of the common law, the union of man and
wife was deemed so complete that there was a junction of
persons, minds, and fortunes. The wife's existence was
absorbed in the husband's, and he, adopting her and her
debts, and assuming to maintain and provide for her, became
entitled to all her personal estate absolutely, and to the
enjoyment of all her real estate for life. When, in the
progress and refinement of commerce, corruption came with
them, and also great hazards to fortune from the spirit of
adventure, the caution and providence of parents endeavored
to guard against causalities by giving property to their
daughters as a separate estate, not liable to the debts of
her husband. This at once dissolved the charm which bound
up the fortunes and wills of the man and wife in one common
bond of interest and affection. It was the introduction of
a principle familiar to the civil law, but new to English
law, that man and wife were distinct persons, with distinct
properties and distinct powers over them. A separate
estate, free from the control of the husband, and subject
to the will of the wife, made her a free agent
quoad that property, and she could act upon it as
a feme sole. But it was soon found that wives,
however legally free, were much under the control of their
husbands, and too readily yielded up their separate estates
to them by direct gifts, or by engagements to their
creditors. This induced some of the judges to interpose and
to endeavor to control the free exercise of this power of
free agency, which the character of a feme sole,
as to the separate estate, bestowed. But, upon the fullest
consideration, it has been found that upon the introduction
of the principle that femes covert could hold
separate estates, free from the control of their husbands,
the jus disponendi, and all the other consequences
of the holding separate estates necessarily followed, and
after an ineffectual struggle the doctrine seems to have
settled down where it was originally placed by the court.
The result, then, is that a feme covert entitled
to a separate estate, in possession, remainder or
reversion, is held to be a feme sole to the extent
of the separate property, and the jus disponendi
follows, of course. She may give it to whom she pleases, or
charge it with the debts of her husband, where no undue
control is used over her, and her disposition will be
sanctioned or enforced by the court, even without the
assent of the trustees, unless that assent be specially
made necessary by the
deed or will creating the separate estate; and this power
of disposing of the separate estate is not restricted by
the deed or will pointing out a particular mode of
disposing of or charging the particular estate, unless the
deed or will negatives any other mode expressly. Upon the
fullest and most attentive examination of the cases, I
think these doctrines are clearly made out and
established."
This
able opinion of the learned chancellor was, however, reversed
in the court of appeals by a majority of the chancellors, and
the courts of that state for many years thereafter maintained
the doctrine that the wife was, as to her separate estate,
under the disabilities of coverture, and entitled to exercise
no rights, except such as were expressly conferred on her by
the instrument creating the estate. In 1870 the legislature
passed a law which authorized a married woman to "convey
her separate property in the same manner, and to the same
extent, as if she were unmarried," and under this
statute the courts have held that the personal contracts of a
married woman are binding upon her.
In New
York the subject has undergone very able and profound
discussion. Chancellor KENT, in Methodist Episcopal
Church v. Jaques, 3 Johns. Ch. 78,
(decided in 1817,) in an elaborate opinion, reviewing many of
the English cases, came to the conclusion--
--"ith
unfeigned diffidence, considering how great talents and
learning, by a succession of distinguished men, have been
exhausted upon the subject, that the English decisions are so
floating and contradictory as to leave us the liberty of
adopting the true principle of these settlements. Instead of
holding that the wife is a feme sole to all intents
and purposes as to her separate property, she ought only to
be deemed a feme sole, sub modo, or to the
extent of the power clearly given by the settlement. Instead
of maintaining that she has an absolute power of disposition,
unless specially restrained by the instrument, the converse
of the proposition would be more correct that she has no
power but what is specially given, and to be exercised only
in the mode prescribed, if any such there be. Her incapacity
is general, and the exception is to be taken strictly, and to
be shown in every case, because it is against the general
policy and immemorial doctrine of law. These very settlements
are intended to protect her weakness against her
husband's power, and her maintenance against his
dissipation. It is a protection which this court allows her
to assume, or her friends to give, and it ought not to be
rendered illusory."
As in
South Carolina, the decision of Chancellor DESAUSSURE,
maintaining the correctness of the English rule, was reversed
by a majority of the chancellors in the court of appeals; so
in New York the decision of Chancellor KENT, condemning the
English rule and departing from it, was reversed in the court
of errors; likewise by a divided court. SPENCER, C.J., in
delivering the opinion of the court, said:
"I
have examined this case with the unfeigned respect which I
always feel for the learned chancellor who has denied the
right of Mrs. Jaques to dispose of her estate without the
consent or concurrence of her trustee, and I am compelled
to dissent from his opinion and conclusions. From the year
1740 until 1793 (with the single exception of the opinion
of Lord BATHURST, in Hulme v.
Tenant, which occurred in 1778, and in which case
a rehearing was granted by Lord THURLOW and the opinion
reversed) there is
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