Hall v. Eccleston

• Decision Date: 21 February 1873
• Citation: 37 Md. 510
• Parties: SUSAN S. HALL and Thomas L. Hume, Trading as Hall & Hume v. CHARLES A. ECCLESTON and Martha A. Eccleston, His Wife, and Others.
• Court: Maryland Court of Appeals

37 Md. 510

SUSAN S. HALL and Thomas L. Hume, Trading as Hall & Hume v. CHARLES A. ECCLESTON and Martha A. Eccleston, His Wife, and Others.

Court of Appeals of Maryland

February 21, 1873

Appeal from the Circuit Court for Montgomery County, in Equity.

The bill of complaint in this case, filed on the 6th of March 1871, by the appellants, doing business in the City of Washington, represented that on the 12th of May, 1870 Charles A. Eccleston and Martha A. Eccleston, his wife, at that time residing in Montgomery County, in the State of Maryland, but at the date of filing the bill, residing in the State of New York, being indebted unto the complainants in the sum of $1,080.62, did, by their promissory note of that date, jointly and severally, promise to pay said complainants, sixty days after date, the said sum of $1,080.62, with interest from date, at the rate of eight per cent. per annum; and, for the faithful performance of which they bound themselves and their separate and individual estates; and further, that the debt for which the said note was given, was contracted on the responsibility of the separate estate of said Martha, and on the representation made by her and her husband, that she had a large and valuable separate estate in Montgomery County. The bill further alleged that the said Charles and Martha were further indebted to the complainants, on open account, in the sum of $41; that said debt was also contracted on the faith and credit of the separate estate of the said Martha, and that at the time the debt was contracted she bound her separate and individual property for the payment of the same. The bill further alleged that the said Charles had no property out of which the debts could be made, but that his wife was the owner of considerable real estate in Montgomery County, and described the several tracts which she owned. The bill charged that one of these tracts had been mortgaged by the said Charles and Martha to William C. Windham, to secure the payment of six hundred dollars; that said Windham had since died, and upon a failure of the said mortgagors to comply with the terms of the mortgage, a bill to foreclose the same had been filed by Mary C. Windham, the executrix of the mortgagee and a decree obtained for the sale of the land, and Richard J. Bowie and R. M. Williams appointed trustees to make the sale. And further, that the said Charles and Martha had conveyed the other tracts of land, by deed of trust, to a certain William B. Webb, of Washington City, to secure the payment of $15,000 due by the said Charles to the First National Bank of Washington, and for which he had passed his five promissory notes, each for the sum of three thousand dollars, payable in one, two, three, four and five years from date, respectively. The complainants alleged that they were remediless, save by the interposition of a Court of Equity and prayed that the property belonging to the said Martha and all her legal and equitable estate and interest in each and every of the said tracts of land might be decreed to be sold, and the proceeds of sale, after paying to the said William B. Webb, trustee, such sum as might be due to the First National Bank of Washington, might be applied to the payment of the claim of the complainants; and that the said Bowie and Williams, trustees as aforesaid, might be ordered, after paying the debt, interest and costs, in the case of Mary C. Windham, executrix v. Charles A. Eccleston and Wife, to pay the balance to the complainants.

The promissory note, the payment of which was sought to be enforced by the bill of complaint, was as follows:

"$1,080.62. Washington, D. C., May 12, 1870.

Sixty days after date, we, or either of us, jointly and severally bind ourselves, our separate and individual estates, to pay Hall & Hume the sum of one thousand and eight and 62-100 dollars, for value received, with interest from date, at the rate of eight per cent. per annum, payable at the Bk. of Washington.

Charles A. Eccleston,

Mat. A. Eccleston."

William B. Webb answered the bill. The defendants, Charles A. Eccleston and his wife, demurred to the bill. On the 9th of February, 1872, the court (Bouic and Lynch, JJ.,) passed a decree sustaining the demurrer and dismissing the bill. From this decree the complainants appealed.

The cause was argued before BARTOL, C.J., BRENT, MILLER and ALVEY, JJ.

Joseph H. Bradley, for the appellants.

Two questions arise in this case which have not hitherto been passed upon by this court:

First.--Can a married woman, holding property in this State, under the statute, encumber the same with the consent of her husband in any other mode than by deed, in which her husband shall join, or by will executed so as to pass the property, without her husband's consent?

Second.--If husband and wife unite in an agreement in writing to sell the wife's land, and the purchase money is paid to her, can a Court of Equity compel her to convey the land? and as a corollary to this, if they agree to mortgage her land, and the consideration is paid, can a Court of Equity compel them to execute the mortgage?

In Cooke v. Husbands, 11 Md. 503, it is said: "In Maryland the law is settled, that where a mode of alienation or appointment is provided, it operates as a negative of any other mode, and is a paramount law governing and controlling every contract in relation to it;" and four cases in this court are cited in support of the proposition. The proposition was not necessary to the decision of that case, and the cases cited do not adjudicate it on the terms thus stated. The case of Lowry v. Tiernan, 2 H. & G. 34, was one in which a woman, in contemplation of marriage, conveyed certain stock to trustees "to pay over the interest on the stock to her, when and as the same should be received, during her natural life, whether she be sole or covert; after her death to be divided equally among her children, if she should leave any; otherwise to go to such person as by her last will she might name." The bill was filed to alter the trust as to the corpus of the trust.

At pp. 39, 40, the court at the outset say: "The entire legal estate is transferred to trustees, who are to permit her to receive, during her life, the dividends and profits of the stock. She has reserved no power whatever over the principal, except merely the jus disponendi by last will and testament, and that only in a certain event," etc.

The case of Tiernan v. Poor, 1 G. & J. 221, not only does not decide the point, but is equally with Price v. Bigham, 7 H. & J. 296, 318, an authority to show that where specific power is given to alienate the estate, it may be encumbered in modes different from the specific power, but still within the jus disponendi.

Brundige v. Poor, 2 G. & J. 1, is of the same class, and establishes directly the power to incumber by mortgage, although the only power was to alienate by deed or dispose of by will. The case is strongly in support of the present proceeding. In Miller v. Williamson, 5 Md. 235, the court says: "It is expressly said, in Tiernan v. Poor, that the right of disposition contained in the deed constitutes a paramount law, and that no decree could pass to enforce any contract, unless such contract be within the limits of her jus disponendi."

But in none of these cases is the proposition, as stated by the court, distinctly adjudicated, nor can it be inferred necessarily from the decisions in all of them. These cases, together with that in 11 Md. 503, were all decided before 1860, but since the Act of 1842, the power of the disposal of her separate estate by a married woman, has been the same as it now is under the Code.

Koontz v. Nabb, 16 Md. 555, although not directly in point, does, by the strongest implication, affirm the right of a married woman, having a separate estate, to affect that separate estate if she enters into an obligation which presents on its face some evidence of her intent to charge the estate, and she has the power to dispose of it during her life. See also Mutual Ins. Co. v. Deale, 18 Md. 47; Brown v. Kemper, 27 Md. 671; Emerick v. Coakley, 35 Md. 191.

These cases lead to the direct inquiry, whether the Code, in "express language," restrains the wife in this case from encumbering her separate estate during her lifetime, with the assent of her husband, in any other mode than by deed duly executed, in which he shall join? They settle, in accordance with the English rule and the law of this State prior to the Code of 1860, that a married woman may deal with her separate estate as a feme sole, provided she does so within the limitations of the settlement, although she does not pursue the precise mode pointed out in the settlement.

Under the Code she is authorized to convey with the assent of her husband. This necessarily carries with it the power with the like assent to contract to convey. It is part of the transaction leading to the conveyance. So in like manner she may mortgage. If she can mortgage, she must have power, with the assent of her husband, to contract an obligation to give a mortgage. Nor is it necessary that the instrument by which she binds, or ostensibly binds her property, shall be a complete and operative mortgage at law. Equity will deal with it, if she has received the consideration, as if it were complete, and will consider that as done which ought to be done. This point is directly ruled in Tiernan v. Poor, 1 G. & J. 227-229.

It is, therefore, within the jus disponendi under the Code, for her, with her husband, to contract for the sale or mortgage of her separate estate.

Has the wife, with her husband, in the writing exhibited with the bill, bound her separate estate? No exposition of the terms used can make her intention to bind her...