Hooton v. Ransom

• Decision Date: 07 May 1878
• Citation: 6 Mo.App. 19
• Parties: ELIZABETH H. HOOTON, Respondent, v. SARAH A. RANSOM ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 19

ELIZABETH H. HOOTON, Respondent,

v.SARAH A. RANSOM ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 7, 1878.

1. The contract of a married woman is not a nullity though it cannot be enforced at law; during coverture, equity lends its processes to enforce it only because it cannot otherwise be enforced, and when the occasion for the interposition of a court of equity ceases the equitable remedy cannot be invoked.

2. Where a promissory note is executed by a married woman and her husband, a court of equity has, after she becomes discovert, no jurisdiction of a proceeding to subject her separate property to the payment of the note. The remedy is at law.

3. The mere contract of a married woman creates no lien or charge upon her separate estate. But a married woman is considered as a feme sole by reason of her separate property, and that property may be resorted to to discharge her obligations, whether written or not, by way of remedy.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

MARSHALL & BARCLAY, for appellants: Where a married woman having a separate estate has during coverture made a contract binding thereon, and afterwards becomes discovert, a proceeding in equity to charge that estate cannot be maintained. The remedy is at law.-- King v. Miltalberger, 50 Mo. 182; Roberts v. Mosely, 50 Mo. 182; Shattock v. Shattock, L. R. 2 Eq. 182. The note created no lien upon the separate estate.-- Kimm v. Weippert, 46 Mo. 532; Maguire v. Maguire, 3 Mo. App. 458.

M. L. GRAY and J. M. HOLMES, for respondent: The note of a married woman is a charge upon her separate estate. Her note is absolutely void in law but is good in equity, not in personam but in rem, as a charge upon her separate estate.-- Coats v. Robinson, 10 Mo. 757; Whitesides v. Cannon, 23 Mo. 457; Claflin v. Van Wagoner, 32 Mo. 252; Schafroth v. Ambs, 46 Mo. 114; Kimm v. Weippert, 46 Mo. 532.

HAYDEN, J., delivered the opinion of the court

This is a suit in equity to charge real estate of the appellant, held by a trustee to her separate use, with the payment of a note signed by herself and her husband during coverture. The note was a negotiable note, in ordinary form except that it was payable one day after date. It was indorsed without recourse to the respondent. The petition alleged that before the bringing of this suit the appellant was divorced from her husband, assumed her maiden name, “and is now a feme sole.” The answer is a general denial. The appellant demanded a jury, which was refused, and the court, upon the evidence afforded by the note, entered a special judgment against the property.

It is contended that a court of equity had no jurisdiction of the case; that under the decision of the Supreme Court of this State in King v. Miltalberger, 50 Mo. 182, the respondent should have sued at law. Without reference to the grounds on which the decision was there put, we think it clear that an action at law, and not in equity, is here the proper remedy. The general rule is, that if the remedy is plain and adequate at law, equity is not to be resorted to. Equity lends its peculiar processes only where the legal remedy fails, or is for some reason insufficient. At law the contract of a married woman, whether she has property or not, cannot be enforced. It is indeed not exact to say, as is continually said, that at law the contracts of a married woman are absolutely void,--that they are mere nullities. Even where a married woman has no separate estate, not only is effect sometimes given, both at law and in equity, to her contracts, but under certain circumstances they may, both in her favor and against her, create obligations. Dameron v. Jamison, 4 Mo. App. 299; Glass v. Warwick, 40 Pa. St. 140; 2 Roper on Husb. & Wife, ^*109. In early cases, English courts, while pronouncing such contracts “void,” proceeded to enforce them under certain circumstances ( Norton v. Turvill, 2 P. Wms. 144; Stanford v. Marshall, 2 Atk. 69); while in the most recent English cases it is said that though the married woman may not make a contract, she may make an “engagement.” See English cases infra, and Pollock on Con. (ed. 1876) 64, 70.

But coverture creates a disability at law; and where the married woman has separate property out of which an obligation can be enforced, equity, during coverture, affixes to the woman the status of a feme sole, and lends its process, that there may be some remedy and that the property may not be beyond all juridical reach. But the occasion ceasing, there is no propriety in resorting to the extraordinary remedy. Indeed, on principle it cannot be resorted to. The settlement is during coverture; when the woman is discovert, the separate estate ceases. Thus, if during coverture she has no power of alienation by the terms of the trust, upon the coverture ceasing, her power to alienate arises. As was said by Judge Leonard in Whitesides v. Cannon, 23 Mo. 467, quoting from the Master of the Rolls in Tullett v. Armstrong, 1 Beav. 33, “Whilst the woman is discovert, the separate estate, whether modified by restraint or not, is suspended and has no operation, though it is capable of arising upon the happening of a marriage.” See Roberts v. Mosely,...