Draper, Knox & Co. v. Jordan
| Decision Date | 31 December 1859 |
| Citation | 5 Jones 175,58 N.C. 175 |
| Court | North Carolina Supreme Court |
| Parties | DRAPER, KNOX & CO., v. WM. B. JORDAN AND WIFE. |
The separate estate of a married woman is not liable to her personal engagements generally, but only where the debt is charged specifically upon her separate estate, with the concurrence of the trustee, if there be one.
CAUSE removed from the Court of Equity of Montgomery County.
The facts disclosed in the pleadings are these: The plaintiffs are merchants in the city of New York and trading under the name of Draper, Knox & Co. In the year 1853, the defendant, Wm. B. Jordan, purchased goods of them to a large amount, and being called upon by them for payment, tendered his wife, Martha Jordan, as his surety, who was accepted, and they thereupon executed their joint and several promissory note for the sum of $635,85, bearing date the 22nd of September, 1853. The following is a copy of the note:
“NEW YORK, September 22d, 1853.
Six months after date I promise to pay to the order of Draper, Knox & Co., six hundred and thirty-five dollars and eighty-five cents, at their office, value received.
+--------------------------+
¦(Signed)¦WM. B. JORDAN, ¦
+--------+-----------------¦
¦ ¦MARY J. JORDAN.” ¦
+--------------------------+
It appeared also that at the time of the execution of this note, defendant, Mary J. Jordan, was possessed of a considerable estate which was bequeathed to her by her father, to her separate use and benefit, but there was no trustee appointed. There was no averment of a specific charge of this debt by the wife on her separate estate; and in her answer she distinctly avers that such was not her intention, but that she signed the note at the request of her husband, and was at the time assured by him that it did not bind her separate property; the defendant, Wm. B. Jordan, has since become insolvent and the bill is filed to subject the wife's separate estate to the satisfaction of the note.
Ashe, for the plaintiff .
Kelly, for the defendant .
The case brings up again the enquiry how far and under what circumstances the separate estate of a married woman is liable for her engagements?
This subject has undergone much discussion and has been variously settled elsewhere; but in North Carolina it is still considered an unsettled question in many respects.
No case has yet gone to the extent of sanctioning the doctrine, that as to the separate property, the married woman is regarded as a feme sole in all respects. This seems to be the English doctrine followed in this country by New York, but not by any other State that we are aware of, while Pennsylvania, Virginia, South Carolina, Tennessee, and Mississippi, adopt a different rule. In the case of Frazier v. Brownlow, 3 Ired. Eq. 237, it has been decided by this Court, that a married woman may in an obligation which she contracts, specifically charge the same on her separate property, where it is done with the concurrence of the trustee. And in the case of Harris v. Harris, 7 Ired. Eq. 111, it is decided, where slaves are bequeathed to the sole and separate use of a married woman during her life (no trustee being named) and then for the use of two daughters, and then...
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Cameron v. Hicks
...use and behalf" of Mrs. Swann for her life and then over. It is difficult to reconcile this language with that of Manly, J., in Knox v. Jordan, 58 N.C. 175. In that case English rule is discussed, the cases decided by this court reviewed, resulting in the conclusion that the feme covert may......
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Sanderlin v. Sanderlin
...necessary implication to the separate estate as the means of payment, this being In the nature of an appointment or appropriation. Knox v. Jordan, 58 N. C. 175; Frazier v. Brownlow, 38 N. C. 237. Since the adoption of the constitution of 1868, she has or can have the legal as well as the eq......