Cartwright v. Wife

• Decision Date: 31 December 1849
• Citation: 5 Tex. 152
• Parties: CARTWRIGHT v. HOLLIS AND WIFE.
• Court: Texas Supreme Court

5 Tex. 152

CARTWRIGHT

v.HOLLIS AND WIFE.

Supreme Court of Texas.

December Term, 1849.

At common law the legal existence of the wife as a distinct person is suspended or incorporated in that of her husband, under whose protection and cover she performs everything. She can make no contract binding either her person or her estate. (Note 24.)

But in equity the wife's individuality is acknowledged, and her capacity to hold a separate estate, with the incidental power of control and disposal, recognized; but in relation to the extent of her power, or rather the mode of its exercise, there has been considerable diversity of opinion.

In England or New York it is held that she may sell, pledge, or incumber her separate estate, when she shows an intention to dispose of it, in the same manner as if she were a feme sole, unless specially restrained by the instrument under which she acquires it.

In South Carolina it is held that she cannot dispose of her separate estate in any other mode than the one prescribed; and that she cannot, by her own act merely, charge her separate estate without an examination by the court into the necessity and propriety of the charge.

It was the obvious purpose of the act of 1840, which introduced the common law, to preserve from the wreck of the Spanish system of jurisprudence those rules, with some modifications, which regarded the matrimonial union, so far as property was concerned, as a species of property, in which each partner might have separate estates or property, as well as a common stock of acquisitions and gains.

The act of 1840, on the subject of marital rights, did not prescribe any mode by which the wife should dispose of her separate property. Her power of disposition was therefore, according to the authorities, uncontrolled, except, perhaps, so far as a court of equity might refuse or enforce her contracts.

The act which prescribes the mode in which the wife may voluntarily alienate her separate estate does not deprive her of the power of contracting in the ordinary mode for supplies necessary for the protection of her property, &c.

The distinction between the separate property of the wife and property limited to her sole and separate use is not recognized by our laws. The property denominated separate is regarded as limited to her sole and separate use, and necessarily excludes the common-law rights of the husband in such property by virtue of the coverture.

Quere as to the construction of the words “other effects” in the act which provides a mode in which married women may dispose of their separate estates.

Quere as to the proprietary interest in the proceeds of the wife's separate property. But however that may be, they can undoubtedly be subjected to the payment of necessary and reasonable charges against the estate, either for its preservation, management, and improvement, or for the support of the wife and her family where the husband is unable to support them as the fortune of the wife would justify, and it makes no difference whether the charges be incurred by the wife directly or by the husband. (Note 25.)

The distinction in some of the cases exempting the separate estate of the wife from liability because credit is given to the husband and not to the wife is frivolous.

The doctrines on the subject of the disabilities of a married woman at common law, and her powers in equity to charge her separate estate, and what will be sufficient evidence of her intention to render it liable, discussed at length in connection with our statutes concerning marital rights and the alienation of their separate estates by married women, and the conclusion drawn that she cannot, by her own act merely, charge her separate estate in any other mode than that pointed out by the statute without an examination by the court into the necessity and propriety of the charge. (Note 26.)

In some of the cases the question whether the capital or rents and profits only of the estate are liable to the charges has been much discussed. Where the wife has the entire interest in the estate, the corpus as well as the issues would no doubt be liable. If the latter be sufficient, they should be first subjected.

Appeal from San Augustine. The petition represents that William and Elizabeth L. Hollis, his wife, are indebted to the petitioner in the sum of one hundred and eighty-four dollars and fifty cents, with interest at the rate of ten per cent, per annum from the 13th of March, 1847; that the said William, having occasion to purchase goods, wares, and merchandise for the use of his family and plantation in 1846, applied to the petitioner to make the said purchases, and proposed that his wife, the said Elizabeth, who had a large amount of separate property, should become his security for the payment of the same; that the petitioner then sold to the said William goods, &c., to the amount or one hundred and eighty-four dollars and fifty cents; and in consideration thereof the defendants executed and delivered to him their joint and several promissory notes for that amount, with the interest thereon as above stated. The petition further states that William Hollis has no separate property of his own, nor is there any community property liable for the payment of his debts; but that his wife, the said Elizabeth, is seized in her own right, and to her separate use, of a considerable amount of property, consisting of negroes, lands, horses, and cattle, which she refuses to dispose of for the payment of the said debt, and denies that the same is liable therefor. The petition prays for discovery, and that an account be taken of the separate property of the wife, and a sufficient amount thereof be decreed to be sold for the payment of the said debt, or that the rents and profits thereof be appropriated for that purpose. The defendants demurred to the petition on the ground that the plaintiff had not made out such a case as entitled him to any discovery or relief as against the defendants touching the matters complained of, and they answered that they did not undertake in the manner and form as set forth in the petition. The demurrer was sustained and the petition dismissed.

Ardrey and Payne, for appellant.

HEMPHILL, Ch. J.

The appellant in his brief states that the question presented by the record or the one intended to be settled by the appeal is “whether a married woman can contract by the execution of a promissory note jointly with her husband, so as to make her separate property liable to the creditor by a proceeding in rem for that purpose, the husband having no community or separate property from which the debt can be enforced.” The question is one of considerable importance, and has been elucidated in a logical and elaborate argument of the counsel in support of the affirmative of the position.

In the investigation I shall not, at least at any length, advert to the powers or disabilities of the wife under the Spanish system of jurisprudence in relation to her separate property. The argument has proceeded on the supposition that the powers and consequent liabilities of the wife in the case under consideration are to be determined by the rules of the common law as modified by the principles of equity and the statutory provisions on the subject of marital rights. At common law the husband and wife are identified and treated as one person. The legal existence of the wife as a distinct person is suspended or incorporated in that of her husband, under whose protection and cover she performs everything. By the marriage all her rights to personal property vest in him absolutely, and a freehold estate in her realty continuing during their joint lives, and by possibility during his life, should he survive; and the wife is incapable of contracting or acting as a feme sole, and of suing or being sued as such. (1 Bl. Comm., 443; 2 Story Eq., sec. 1367; 8 T. R., 547; Roper on Husband and Wife, 2 vol., 119.) The husband could not grant anything to the wife or enter into covenant with her, for that would admit her distinct separate existence; nor could she bind him by any contract or incur any debt without his consent, with certain exceptions, in which there was a legal implication of her authority to act as his agent and of his liability to pay for necessaries. (2 Roper, 111.)

But in equity the wife's individuality was acknowledged, and her capacity to hold a separate estate with the incidental power of control, management, and disposal recognized; but in relation to the extent of her power, or rather the mode of its exercise, there has been a considerable diversity of opinion. The decisions of the English courts on the subject were for a long time wavering and unsettled; but it seems now to be established law that a wife who has an absolute interest in or power over her separate estate can dispose of it in any manner capable of transferring it; that her power of disposition is incidental to the estate she holds in the property, and she can dispose of it in the same manner and to the same extent as a feme sole. (2 Story Eq., sec. 1390; 2 Roper, 177-198.)

I shall not attempt to travel through the numerous authorities in which the power of femes covert to charge or dispose of estates limited to their separate use has been discussed. They have doubtless been frequently canvassed, and were critically and elaborately reviewed by Chancellor Kent, in the Methodist Episcopal Church v. Jacques, (3 Johns. Ch. R., 78,) and by Chancellor Dessaussure in Ewing v. Smith. (3 Dess. R., 477.) In the former case the Chancellor, after a most laborious examination of the cases for nearly a century, was of opinion that the decisions were so floating and contradictory as to leave him at liberty to adopt the true principle, viz, that a feme covert was not, as to her separate property, to be deemed a feme sole, but only a feme sole sub modo, or to the extent of the power clearly given by the deed of settlement. That instead of...