Warren v. Freeman

• Decision Date: 06 March 1887
• Citation: 3 S.W. 513,85 Tenn. 513
• Parties: WARREN, Adm'r, etc., and others v. FREEMAN and Wife.
• Court: Tennessee Supreme Court

3 S.W. 513

85 Tenn. 513

WARREN, Adm'r, etc., and others v. FREEMAN and Wife.

Supreme Court of Tennessee.

March 6, 1887

Appeal from chancery court, Cannon county.

J. A Jones, for appellants.

F. R Burris, for appellees.

CALDWELL J.

This is a bill to subject the separate real estate of a married woman to the payment of her debt. The lands of John H. Wood deceased, were sold under decree of the chancery court, Cannon county, for division among the heirs and creditors. His daughter, Mrs. Martha J. Freeman, bought 122 acres of the land at the price of $2,691.56. The sale was confirmed October 25, 1881, and title was by decree of the court vested in her, " to her sole and separate use, free from the debts or contracts of her husband, J. H. Freeman." The note now sought to be collected out of that land is in these words:

"One day after date I promise to pay H. C. Warren, adm'r, and E. T. Fisher, adm'r of A. H. Fisher, dec'd, the sum of $313.18 for necessaries furnished me by A. H. Fisher in his life-time, and I bind my separate estate for the payment of this note.

" This May 29, 1884.

[Signed] )40"Mrs. M. J. FREEMAN.

"J. H. FREEMAN, Security."

The payees of the note brought this bill in the chancery court against Mrs. Freeman and her husband. The complainants allege the execution of the note, and that the debt evidenced thereby was created alone upon the credit of the separate estate of the wife, the husband being insolvent at the time, etc. Defendants admit the execution and justice of the note, and that the husband was then and is now insolvent. They say, however, that in law the note is the debt of the husband, and not binding upon the wife; but they do not deny the allegation of the bill that the credit was extended to the wife alone upon the faith of her separate estate, or that the debt is "for necessaries furnished" her, as recited in the face of the note. They plead the coverture of the wife, and deny the liability of her land for the payment of her note. The note and title papers constitute the whole of the proof in the cause. The chancellor dismissed the bill as to the wife, and complainants have appealed.

Is the decree right? We think, clearly not. The right of a married woman to own and enjoy separate property has long been recognized and encouraged by the courts and legislature in this state; and, where there is no restriction or limitation upon her powers, with reference thereto, in the instrument of settlement upon her, it is well settled by the decisions of this court that her separate estate will in equity be held liable for her contracts and engagements, when she has therein expressly stipulated to that effect. Litton v. Baldwin, 8 Humph. 210; Cherry v. Clements, 10 Humph. 552; Parham v. Riley, 4 Cold. 5; Shacklett v. Polk, 4 Heisk. 115; Ragsdale v. Gossett, 2 Lea, 736. These authorities are conclusive against Mrs. Freeman in the present case. She owns the land as separate property, without the slightest restriction upon her power of enjoyment or alienation. This property she expressly contracts in writing to bind for her debt, which she says was created by necessaries being furnished her by the creditor. That the necessaries were furnished before the execution of the note we deem unimportant. That they were furnished her alone upon the credit of her separate estate is fairly inferable from the face of the note itself, and from the insolvency of her husband, as alleged in the bill and admitted in the answer. It is certain that she regarded the debt as her own, and agreed in writing to charge its payment upon her separate property. It is likewise certain that her husband so regarded it, otherwise he would not have signed as "security." If it be true, as stated in the answer, that Mrs. Freeman did not understand her legal rights when she executed the note, the burden of showing that fact was upon her. It was not incumbent upon complainants to disprove her statement in avoidance of her contract. It is true that subjection of separate estate was refused in most of the cases to which we have referred; but the law was distinctly announced as we have stated it in each of them, and the relief, when denied, was denied expressly and alone upon the ground that the creditor did not bring his case within the rule, by showing the intention and agreement of the married woman to bind her separate property.

The same principle was recognized and approved, at a former day of the present term of this court, in the case of Jordon v. Keeble, ante, 511, Judge LURTON delivering the opinion. There Jordon was repelled because the note of the married woman did not purport on its face to bind her separate estate. In Porter v. Baldwin, 7 Humph. 177, the separate estate was subjected to the payment of the married woman's note upon the ground that it was given for the rent of a house for her to live in, (or for her comfort, or for necessaries, as in this case,) though there was no agreement on her part to bind her property.

We do not ignore, but recognize and follow, the rule of the common law which declares the contracts of married women, as such, absolutely void and of no binding effect. No personal liability can be adjudged against her. Only her separate estate, which itself rests upon equitable principles, can, under like principles, be taken to meet her engagements entered with reference to that estate.

In Cocke v. Garrett, 7 Baxt. 365, and in the case, just mentioned, of Jordon v. Keeble, the remedy is declared to be in rem, and not in personam. It is elsewhere said: "The true rationale of the doctrine is that the liability of a wife's separate property for her engagements is a mere equitable incident of her separate estate, which is itself a creature of equity." 3 Pom. Eq. Jur. 49. And certain English judges, quoted by the same author, say: "It is a special equitable remedy arising out of a special equitable right." "It is not the woman, as a woman, who becomes a debtor; but her engagement has made that particular part of her property which is settled to her separate use a debtor, and liable to satisfy the engagement." Id. Judge Story says: "Her agreement, however, creating the charge, is not, (it has been said,) properly speaking, an obligatory contract, for as a feme covert she is incapable of contracting, but is rather an appointment out of her separate estate. The power of appointment is incident to the power of enjoyment of her separate property; and every security thereon executed by her is to be deemed an appointment, pro tanto, of the separate estate." 2 Story, Eq. Jur. § 1399.

The chancellor was of opinion that the note in suit would have bound the separate estate of...