Hughes v. Petitioner

• Decision Date: 15 April 1882
• Citation: 19 W.Va. 366
• Court: West Virginia Supreme Court
• Parties: Hughes & Co. v. Hamilton et als.

19 W.Va. 366

Hughes & Co.

v.Hamilton et als.

Supreme Court of Appeals of West Virginia.

Submitted August 19, 1879.

Decided April 15, 1882.

1.The jus disponendi is an incident to the ownership of the separate estate of a married woman; and it can only be taken away or limited by express words or by an intent so clear as to be the equivalent of express words, The liability of the separate estate of a married woman to the payment of all her debts incurred during coverture is also an incident of the ownership of such separate estate; and it can only be taken away by express words or by an intent so clear as to be the equivalent of express words. But these incidents, liability to the payment of her debts, and her Jus disponendi, extend no further than to all her separate personal property and the rents and profits of her separate real estate accruing during coverture, (p. 389).

2.The debts of a married woman, for which her separate estate is liable, are such as arise out of any transaction, out of which a debt would have arisen, if she were a, feme sole, except that her separate estate is not bound by a bond or covenant based on no consideration, such bond or covenant being void at law, and she not being estopped in a court of equity from showing, that it was based on no consideration. (p. 389).

3. The consideration. which will support an action for her debts or contracts, so as to make her separate estate liable, need not inure to her own benefit or that of her separate estate, but it may inure to the benefit of her husband or any third party, or may be a mere prejudice to the other contracting party; in short it may be any consideration, which would support the contract, if she were a feme sole. But her separate estate cannot be made liable for the payment of any debt of her husband or any other person, unless she has agreed to pay the same by some contract in writing signed by her or by some one authorized by her. She may become surety for her husband, and her separate estate will be liable for the debt, (p. 389).

4.A married woman can affect or charge the corpus of her real estate by a conveyance or specific lien created by deed, in which her husband unites with her, and which she executes after privy examination; and this she can do whether her trustee in any way unites in the deed creating the specific lien on her separate real estate or not, unless she is restrained by the instrument creating the separate estate from so doing by express words or by an intent so clear as to be the equivalent of express words, (p. 392).

5.The debt of a general creditor of a married woman does not constitute a lien or charge upon the separate estate real or personal of such married woman prior to the institution of suit by such creditor to subject such separate estate to the payment thereof. (p. 395).

6.Such creditors of a feme covert have no priority over each other, unless it be acquired by superior diligence in proceeding to obtain satisfaction. (p. 393).

7. A general creditor of a married woman has no lien or charge upon her separate estate prior to the institution of his suit in equity to subject such separate estate to the payment of his debt; it is therefore not necessary or proper to make her other general creditors parties defendants to his bill, (p. 393).

8 But other general creditors of a feme covert may each file his bill to subject such separate estate to the payment of his debt; and perhaps they may file petitions in a pending cause for the purpose praying, that such separate estate should also be subjected to the payment of their respectjve debts. (p. 393).

9.Such general creditors will be allowed priority of payment out of such separate estate between each other according to the time or times, when their suits are brought or their petitions filed (p. 393).

10.A general creditor of a feme covert may subject the separate estate of a feme covert to the payment of his debt, but with us he cannot do so by obtaining a personal judgment in a court of law against the feme covert. His remedy is by bill in a court of equity to subject such separate estate to the payment of his debt, not because his debt is a lien or charge upon such separate estate, any more than the debt would be against the estate of a feme sole, but because the debt is just, and it is just and equitable, that such separate estate should be subjected to the payment of the debt, and a court of equity affords the remedy and the only remedy by proceeding dii ectly to subject such separate estate to the payment of the debt according to its rules and principles in such cases. (p. 394).

11 The proceeding in a court of equity by bill to subject the separate estate of a feme covert to the payment of her debts is in the nature of a proceeding in rem. (p. 394).

12.In a proceeding in equity by a general creditor against a feme covert to subject her separate estate to the payment of his debt a court of equity generally will not sell the corpus of her real estate to pay such debt, but will only subject the annual rents and profits during the joint lives of herself and her husband to the payment of such debt; but such court will sell the separate personal property of the feme covert and apply the proceeds of the sale thereof to the payment of the debt. (p. 394).

13.In such a proceeding perhaps all rights acquired from or under the feme covert to her separate property sought to be subjected in the proceeding to the payment of her debt, pending the proceeding, are subject to any decree, which may be made in the proceeding, except so far as a purchaser may be protected by section 14 of chapter 139 of the code of this State as amended by chapter 68 of the Acts of the Legislature passed February 27, 1877, p. 93. In all other respects the maxim pendente lite nihil innovetur applies, (p. 394).

14.The debt of a general creditor of a feme covert after suit brought by such creditor to subject such separate estate to the payment of such debt becomes a quasi lien at least upon such separate estate and for the satisfaction thereof, (p. 395).

15.When the court has jurisdiction of the parties and the subject-matter of the suit, the debtor cannot have a decree confirming a sale of real estate reversed for errors merely in the decree ordering the sale of such realty, where the purchaser is a stranger, (p. 396).

16.In sales made by commissioners under decrees and orders of a court of equity the purchasers, who have bid off the property and paid their deposits in good faith, are considered as having inchoate rights, which entitle them to a hearing upon the question, whether the sale shall be set aside. (p. 399).

17.The court may in the exercise of a sound discretion either affirm or set aside the sale, when from the facts, evidence and circumstances before it it appears clearly, that the sale was made at a greatly inadequate price; and the court may also solve the question upon affidavits or depositions in connection with the fact, that a greatly larger price is offered to the court for the land and secured, or offered to be secured, or may set the sale aside upon any evidence or fact or facts before it, which clearly shows, that the land was sold at a greatly inadequate price. The discretion, which the court may exercise, will not authorize it to set aside the sale without sufficient cause; and a greatly inadequate price is among other things a sufficient cause, (p. 399).

Appeal from and supersedeas to certain decrees of the municipal court of the city of Wheeling, rendered respectively on the 27th day of August, 1877, on the 15th day of October, 1877, on the 4th day of December, 1877, on the 20th day of February, 1878, on the 29th day of February, 1878, and on the 4th day of March, 1878, in a cause in said court then pending wherein Thomas Hughes & Co. were plaintiffs, and Susan R. Hamilton and others were defendants, allowed upon the petition of said Hamilton.

Hon. G. L. Cranmer, judge of the municipal court of the city of Wheeling, rendered the decree appealed from.

Haymond, Judge, furnishes the following statement of the case:

On the 2d day of December, 1876, the plaintiffs commenced their suit in equity against the defendants in the municipal court of Wheeling, Ohio county, in their bill alleging substantially, that on the 18th day of December 1875 at the city of Wheeling, the defendant, James Hamilton, (who was then and since the husband of the defendant, Susan R. Hamilton) was indebted to them in a large sum of money exceeding in the aggregate the sums of the two notes in writing hereinaf- ter mentioned; that on the day and year last aforesaid at said city the said James Hamilton made his certain promisory note in writing of the date last aforesaid, and thereby and then and there promised to pay, sixty days after the date thereof, to the order of the said Susan R. Hamilton $195.75, for value received, negotiable and payable at the Commercial Bank at Wheeling, W. Va., and the said defendant Susan R. Hamilton on the day and year last aforesaid at said city endorsed the said note to the plaintiffs and by her said endorsement bound her separate estate for the payment thereof, and she then and there subscribed her name to said endorsement, which said note so endorsed was then and there on the day and year last aforesaid at the said city delivered by the said James Hamilton to the plaintiffs in consideration of indebtedness to the amount of said note then due and payable to them from him said James Hamilton, that said Susan R. Hamilton was the wife of said James Hamilton on the day and year last aforesaid, when she endorsed the said note and has been ever since; that she made said endorsement for the purpose of making the money in said note payable to the plaintiffs, according to the tenor and effect thereof and also for the accommodation of her husband, and as security for him, and to procure further indulgence of time of payment of said debt then due from him to plaintiffs, and...