Sidway v. Nichol

• Decision Date: 07 March 1896
• Citation: 34 S.W. 529,62 Ark. 146
• Parties: SIDWAY v. NICHOL
• Court: Arkansas Supreme Court

34 S.W. 529

62 Ark. 146

SIDWAY v. NICHOL

Supreme Court of Arkansas

March 7, 1896

Appeal from Jefferson Chancery Court, JAMES F. ROBINSON, Chancellor.

Decree affirmed.

Bridges & Wooldridge and Rose, Hemingway & Rose for appellants.

1. Mrs Nichol took an absolute estate in equity under the will of Willoughby Williams. The terms import an absolute gift, the only limitation being that it should be free from the debts contracts and liabilities of her husband. 7 A. 178; 3 Jarm. Wills, p. 36, and note; 4 Mon. 257. No words of inheritance were necessary. Sand. & H. Dig. sec. 698; 58 Ark. 303.

2. The power of alienation exists, unless denied by the instrument under which the separate estate is held. 11 Vesey, Jr., 209; 2 Perry, Trusts, secs. 655-6, T.; 1 Bish. Mar. Wom. secs 851-2; ib. secs. 865-6-7-8-9; 23 Mo. 457; 3 Gr. Ch. 512; Sand. & H. Dig. sec. 5446. These authorities settle the question that in this state the separate property of a married woman may be aliened unless alienation is expressly forbidden by the instrument under which she holds.

3. But even if Mrs. Nichol, by her individual act, could not mortgage her separate estate, she and her trustee were clearly entitled to do so by their joint deed. Tiedeman on Real Prop. sec. 515; 2 Washb. Real Prop. secs. 519-20; 16 S.W. 459; 3 Kas. 292; 11 S.W. 806.

4. The trust was executed by the purchase of the land, and the legal title vested with the equitable in Mrs. Nichol. Tiedeman Real Prop. sec. 469; 69 Ga. 331; 78 id. 5; 80 id. 36; 20 Am St. 909.

5. The bequest was in money, and the right of a married woman to dispose of personal property given to a trustee for her benefit has always been recognized, unless restrained by the instrument creating the trust. But the death of her husband removed all restrictions, and her power to alienate became perfect. 20 Am. St. 909. When her legal and equitable title became perfect, it inured to the benefit of her former grantee. Sand. & H. Dig. sec. 699.

6. The claim was properly allowed against Mrs. Nichol's estate. The money was loaned her, and became her separate property, and for its payment the property was liable.

N. T. White and S. R. Cockrill, for appellees.

1. Mrs. Nichol has no estate she could mortgage. 47 Ark. 254-268. See also Perry, Trusts, sec. 386a; 59 Vt. 530; 3 Gray, 405; 1 Bish. Mar. Wom. sec. 844; 59 Pa.St. 393; 141 Pa.St. 449, 357; 4 Rich. Eq. 475; 3 Johns. Ch. 68; 29 Ark. 346.

2. But if she had the power to dispose of the land, still the decree is right, for by the deed an equitable life estate was vested her with remainder to her children. The rule in Shelley's case does not apply. Elph. Int. Deeds, p. 210; 1 Devlin, Deeds, secs. 215, 220; 4 Rich. Eq. 470; 1 Atk. 607.

3. No personal decree could be rendered against Mrs. Nichol or her administrator. She was a married woman, and it was not shown that she was carrying on any separate business, or that she had any separate estate. 29 Ark. 349; 43 id. 163; 39 id. 357; 56 id. 220; 52 id. 234-6; 56 id. 294; Kelley, Cont. Mar. Wom. p. 188; Sand. & H. Dig. secs. 4947-4952.

OPINION

RIDDICK, J., (after stating the facts).

There are only two questions in this case. The first is, did Mrs. Nichol have power to convey by mortgage the lands involved in this case? We think this question was answered in the negative by the case of Williams v. Nichol, 47 Ark. 254, 1 S.W. 243. The land mortgaged was purchased with the proceeds of a legacy left by the will of Willoughby Williams, deceased, to John H. Williams, to be held in trust and the interest and profits therefrom paid to Mrs. Nichol free from the control of her husband. It was held in Williams v. Nichol, supra, that Mrs. Nichol was entitled only to the interest on the money bequeathed to her use. The money, under an order of court, was subsequently invested in land, and the land conveyed to a trustee, to be held in trust for the uses and purposes mentioned in the will of Willoughby Williams. The land then took the place of the money, and Mrs. Nichol had only the right to use and dispose of the rents and profits arising therefrom. The chancellor properly held that after the death of Mrs. Nichol the mortgage was of no effect. Williams v. Nichol, supra; Rife v. Geyer, 59 Pa. 393; Wells v. McCall, 64 Pa. 207; Perry on Trusts, (4th Ed.), sec. 386a.

The second question is, did the court err in rendering judgment against the estate of Mrs. Nichol for the amount of the note executed by her? The complaint alleged that the consideration for the note was money loaned to Mrs. Nichol. As this allegation was not denied, we must take it as true; and the question presented is whether a married woman, under our law, has the right to borrow money for her own use and benefit, and whether or not she becomes personally liable for the payment of a note executed for such money.

It has been frequently held by this court that a married woman may make a contract for the benefit of herself or her separate estate, and that such contract will be enforced against her separate property. Stowell v. Grider, 48 Ark. 220, 2 S.W. 786; Collins v. Underwood, 33 Ark. 265; Stillwell v. Adams, 29 Ark. 346. This was the law before the passage of the statutes enabling married women to acquire and hold property in their own right, free from the control of their husbands, and without the aid of a court of equity. The promissory note of a married woman, given for money borrowed by her before the passage of the enabling statutes, would have been enforced in equity against her separate estate. Dobbin v. Hubbard, 17 Ark. 189; Miller v. Brown, 47 Mo. 504; Boatmen's Savings Bank v. Collins, 75 Mo. 280; Williams v. Urmston, 35 Ohio St. 296, S. C. 35 Am. Rep. 611; Davis v. First Nat. Bank of Cheyenne, 5 Neb. 242, S. C. 25 Am. Rep. 484; 2 Kent 151; Lawson, Rights & Rem. sec. 749. Such a contract, before the enabling statutes were passed, created no personal liability against her, for the reason that the separate property of married women before the passage of such laws was altogether a creation of a court of equity.

By the common law she could make no contracts. The contracts of a married woman were void at law, and were not recognized by courts of law. Inasmuch as her creditors had no means, at law, of compelling the payment of her debts, the courts of equity, which had created her separate estate, took upon themselves to enforce her promises, not as personal liabilities, but by laying hold of her separate property, as the only means by which they could be satisfied. Owens v. Dickenson, Craig & P. 48, 54; Pike v. Fitzgibbon, L. R. 17 Ch. D. 454; 3 Pom. Eq. sec. 1122, and cases cited. If the married woman had no separate estate, her creditors were without a remedy, for the proceedings to enforce her promises made in reference to her separate estate were not against her personally, but against her separate estate. It was a peculiar remedy, formulated by courts of equity to enforce promises which at law were void. Ex parte Jones, L. R. 12 Ch. D. 484; 3 Pom. Eq. sec. 1122; and note.

While the law stood in this condition, our constitution was adopted, and statutes were enacted providing that property owned by a married woman at the time of her marriage, or acquired afterwards, should be and remain her sole and separate property; allowing her to bargain, sell, assign, and transfer such property, and to engage in trade or business on her own account; providing that no bargain or contract made by her in respect to her sole and separate property, business, or services shall be binding on her husband, or render him or his property in anyway liable therefor, but that she may alone sue or be sued in the courts of this state on account of said separate property, business, or services; and further providing that any judgment against her may be enforced by execution against her sole and separate estate or property to the same extent and in the same manner as if she were sole. Sand. & H. Dig. secs. 4945-4951.

The object and effect of these statutes was to make a radical change in the law as regards the rights and powers of married women. Every married woman of this state who acquired property after the passage of these laws became at once the owner of a separate estate. It is no longer an equitable estate, to be recognized alone by courts of equity; but it is, by virtue of the statute, a legal estate, recognized by courts of law as well as of equity. These laws do not give the wife power to contract generally. Her note given as surety for the debt of another would not bind her, or be enforced against her property. But they do give her power to contract in reference to her services, her separate estate, and in respect to a separate business carried on by her. The statute not only authorizes her to make such contracts, but expressly provides that she may alone sue or be sued in the courts of this state on account of such "property, business, or services." Sand. & H. Dig. sec. 4946. It has been twice held by this court that under this statute the contracts of a married woman in relation to her separate business create a personal liability against her. Hickey v. Thompson, 52 Ark. 234, 12 S.W. 475; Trieber v. Stover, 30 Ark. 727.

It follows, upon the same reasons, that a contract in reference to her separate property creates also a personal liability for the statute includes such contracts,--as much so as it does those concerning her separate business. "The right to contract," said Justice Scholfield in Haight v. McVeagh, "is indispensable to the acquisition of earnings, and to the unrestricted possession, control, and enjoyment of property." Haight v. McVeagh, 69 Ill. 624; Hickey v. Thompson, supra. The purpose of the statute was to permit married women to acquire and hold...