Dallas v. Heard

• Decision Date: 31 May 1861
• Citation: 32 Ga. 604
• Parties: William Dallas, plaintiff in error. vs. John W. Heard,et al., defendants in error.
• Court: Georgia Supreme Court

32 Ga. 604

William Dallas, plaintiff in error. vs. John W. Heard, et al., defendants in error.

Supreme Court of the State of Georgia

MAY TERM, 1861.

In equity, in Wilkes Superior Court. Decided by Judge Thomas, at March Term, 1861.

The record in this case presents the following facts and questions, to-wit:

Mrs. Lucinda Lane, the wife of Micajah Lane, held and possessed certain property, a portion of which was, by a decree in equity, rendered in Troup Superior Court, vested in William Q. Anderson, "for the sole and separate use, benefit and behoof of the said Lucinda and her children, free from any debt, contract or liability of her husband, " and a portion of which was, by the will of Mrs. Ann Anthony, " bequeathed to the said William Q. Anderson, in trust, for the sole and separate use of the said Lucinda and her children, during her life, and at her death, to be equally divided among the said children, the property not to be subject to the debts of the said husband of the said Lucinda."

On the 26th of March, 1856, the said Lucinda, whilst she was still a feme covert, and her son, Boiling A. Lane, executed a joint and several promissory note for $276 25, due one day after date, and payable to William Dallas, or bearer. At the date of the note, Mrs. Lane held the property aforesaid, and Boiling A. Lane was insolvent, and has so remained from then until now.

On the 9th of January, 1858, the said Lucinda Lane, and her children, James H. Lane, for himself and as assignee of Boiling A. Lane, Joseph L. Lane, John W. Heard, in right of his wife, Sarah F. Heard, formerly Sarah F. Lane, Andrew J. Lane, and George M. Lane, all entered into a written agreement, in which it was stipulated that the property aforesaid (except certain specified articles) should be "all sold, and that the proceeds of the sale, and the negroes (after payment of all debts for which said property is legally bound) be divided among said children, in consideration of which the children should each pay to the said Lucinda, annually, the one-sixth part of $350 00 during her natural life. The property was sold and divided in pursuance of this agreement, and in a short time thereafter the said Lucinda died, leaving no estate of any kind, and being insolvent, she has not and is not likely to have an administrator.

William Dallas filed his bill in equity to compell the children to pay the note given by Mrs. Lucinda Lane and Boiling Lane under the facts before stated, insisting that the debt was a charge upon the separate estate of the said Lucinda, and that as the children had the property, they ought to pay each their proper proportion of his debt.

The defendants met the bill by a demurrer, on the grounds:

1. That the bill contained no equity.

2. That no representative of Lucinda Lane's estate was a party to the bill.

3. That Boiling A., Joseph L., and George M. Lane are not made parties to the bill.

After argument had, the presiding Judge sustained the demurrer " on the first ground taken, and because it did not appear from the bill, that the note for which the complainant seeks payment, was chargeable upon the property, which the defendants received under the agreement, " and directed the bill to be dismissed and judgment to be signed against complainant for cost.

This decision is the error complained of in the record.

W. M. Reese, for plaintiff in error.

Hester & Akerman, contra.

By the Court.—Lyon, J., delivering the opinion.

Lucinda Lane, a married woman, having a life estate in certain real and personal property, secured to her sole and separate use, executed on the 26th March, 1856, to the complainant, jointly and severally with her son Boiling A. Lane, a promissory note for the sum of $274 25. On the 9th January, 1858, the note being unpaid, Mrs. Lane assigned this life estate, being the whole of her separate estate, to the defendants, upon the consideration that they would pay all debts for which said property was legally bound, and that each of them would pay to her annually during her life the one-sixth of $350 00. Boiling A., the other party to the note, being insolvent, and Lucinda Lane having departed this life without leaving any assets for the payment of this debt, the complainant filed this bill against defendants to compel a payment of the note under their agreement with the said Lucinda, upon taking her assignment thereof to the property. To this bill defendants demurred, on the grounds 1. That the bill was without equity. 2. That sufficient par-ties to the bill had not been made. The first grounds involves two questions.

1. Whether the life-estate of Lucinda Lane, in the property assigned to defendants, that being an estate to the sole and separate use of the said Lucinda Lane, a feme covert, was subject to, or bound for, the payment of this debt while in her hands and before assignment to defendants?

2. Whether this bill could be maintained by the complainant against the defendants on their agreement with the said Lucinda Lane, the complainant being no party but a stranger thereto.

1. As to the first question, that is, whether the property was bound for the payment of the debt? we hold that it was. Whenever property is secured to a feme covert to her sole and separate use, without qualification, limitations or restrictions as to its use and enjoyment, she is to be regarded in respectto such estate, in all respects, as a feme sole, and it is chargeable and bound for the payment of all debts contracted by her that may be secured by her promissory note, or other undertaking in writing, to pay the same, whether such note is given by her alone or jointly with others; she being the sole and exclusive owner of the property, she holds it with all the incidents of property—the right of selling, giving, or charging it with the payment of debts. A brief examination or reference to the principal adjudications on this subject will show that this is now the settled doctrine of the Chancery Courts of England, and was so at and long before the 16th day of May, 1776, the time at which the laws of England, then in force, were adopted and declared to be of force in this State by the adopting act of 25th February, 1784. The earliest reported case that I can lay my hands upon, though there are others of a much earlier date that I can not get, is that of Powell vs. Hankey, 2 Peere William\'s, 82, decided by Lord Hardwick in 1722. In that case the husband had received from the trustees of the wife £200, the proceeds of the sale of a part of the wife\'s real estate, secured to her sole and separate use, and had given to the trustees his bond for the amount, payable three months after the death of the wife, for the benefit of the executors. After his, the husband\'s, death, the wife filed a bill against the executors of her husband for an account, among other things, for that £200, with the interest. The Court held as to this £200, being her separate estate, as she had accepted the bond so payable in the husband\'s life time, she was bound by it— as to it she must prima facie be looked upon as a feme sole; it was as if a feme sole had accepted such a bond." In Norton vs. Turville, 2 Peere William, 144, the wife, before marriage, with the consent of the intended husband, conveyed an estate to trustees for her sole and separate use after marriage. During the coverture she borrowed £25, and gave her bond for its payment. Tea years afterwards, she made her will, appointing A and B her executors, her husband possessed himself of £24 of her separate estate. After which the obligee in the bond brought a bill against the executorsand the husband for the recovery of the £25 out of the separate estate of the wife in their hands. The Court held that all the separate estate of the wife was trust fund for the payment of debts, and that the plaintiff ought to be at liberty to prosecute all the defendants in order to be paid out of the separate estate of the feme covert. The Court stated that this "was a trust estate for the payment of debt, " as an answer to the plea of the Statute of Limitations interposed by defendants. Had the wife charged her separate estate by will or deed with the payment of debts, under a supposed power of appointment in the instrument creating this estate in her favor, the objection of the defendant that the bond was void, and not recoverable, would have been out of place, and there would have been no necessity for the bill or the litigation, as assets were admitted, or if so the litigation must have turned on a wholly different point. These observations on this case are made in reply to Chancellor Kent\'s attack upon it in the Methodist Episcopal Church vs. Jaques, 3 John\'s Ch., 93.

3. Lord Hardwick ruled, in Redout vs. Lewis, 1 Atk., 269, " that the wife might come to an agreement with her husband in relation to anything she held separately;" in Stanford vs. Marshall, 2 Atk., 69, that the separate estate of feme covert, who had become sureties with their husbands, were responsible to the creditors; in Allen vs. Papworth, 1 Ves., Sen., 163, that if a feme covert having power to receive the profits of an estate to her separate use, and to appoint them as she pleased, brings a bill jointly with her husband for an account, and submitting that the profits should be applied to the payment of the husband's debts, and a decree passes, that bill to which she was made a party without collusion, is as much an execution of her power as an actual appointment would have been, and the profits shall be bound by the decree. In Heade vs. Greenbank, 1 Ves., Sen., 303, it is a rule of Court that a feme covert may dispose of her personal estate when given to her separate use. In Grigby vs. Cox., 1 Ves., 518, "the rule of Court is, that when anything is settled to the wife's separate use, she is considered as a feme sole; may appoint in what manner she pleases, and unless the joining of her trustees with her is made necessary, there is no occasion for...