Whitesides v. Cannon

• Decision Date: 31 October 1856
• Citation: 23 Mo. 457
• Parties: WHITESIDES, Plaintiff in Error, v. CANNON & WIFE et al., Defendants in Error.
• Court: Missouri Supreme Court

23 Mo. 457

WHITESIDES, Plaintiff in Error,

v.CANNON & WIFE et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1856.

1. Where a trust is created for a married woman's separate use without more, she has an alienable estate independent of her husband, which she may dispose of as a feme sole owner; she has also the power, incident to property in general, of contracting debts to be paid out of her separate estate.

2. A married woman executed a promissory note jointly with her husband; held, although it did not appear on what account the note was executed, whether for the benefit of the wife, or of the husband, or for their joint benefit, that equity would subject real estate held to the separate use of the wife to the payment thereof, and would decree a sale of the same.

Error to St. Louis Land Court.

The petition sets forth substantially that on the 7th of January, 1853, J. M. Cannon, one of defendants, without any valuable consideration, conveyed to his wife, Ann F. M. Cannon, certain real estate, “for her sole and separate use and benefit;” that on the 18th day of May, 1853, Louis C. Smith conveyed a tract of land in St. Louis county to L. M. Shreve, also a party defendant to this suit, “in trust for the sole, separate and exclusive use and benefit of the defendant Ann M. F. Cannon, apart from any control whatever of her husband;” that on the 6th of June, 1853, Cannon and his wife executed their certain negotiable promissory note, whereby they promised to pay plaintiff, six months after date, the sum of $1,590; that “at the time of the execution of the said note, the said Ann was, and still is, the wife of the said John M. Cannon; and by the execution of the said note, she became bound and liable to pay the contents thereof to the plaintiff, and thereby then and there by law pledged her separate estate for the security of the payment of said note, and by means thereof the plaintiff acquired and still has a lien on her separate property.” Plaintiff prayed judgment for the amount of the note, and “that the said several parcels of land above described, or as much thereof as may be necessary to satisfy the said note, with the interest and costs, may, by the judgment of this court, be sold to pay said note, with interest and costs.”

The answer, admitting the making of the note, denies that Mrs. Cannon “has by any act of her own, nor has she by law pledged her separate property to the payment of said note, or that plaintiff has any lien on her separate property.”

The cause was submitted to the court upon the petition and answer, and the court found the facts as follows: “By the admissions of the answer the court finds that it is true, as stated in the petition, that the defendant Ann F. M. Cannon was, and is, the wife of the defendant, John M. Cannon; that she held and holds as her separate property the real estate mentioned in the petition as therein stated; that she joined with her husband, John M. Cannon, in executing the negotiable note mentioned in the bill for $1,590, as stated in the bill; and that said note remained unpaid at the time of the commencement of this suit. In view of the truth of all these facts, it is the conclusion of the court that the plaintiff is not entitled to the remedy he seeks by his petition, and can not have a decree to charge the separate estate of Mrs. Cannon with the payment of the said note.” The petition was dismissed.

Glover & Richardson, for appellant, cited Bell on Law of Property, 518, 516; Norton v. Turville, 2 P. Will. 144; Peacock v. Monk, 2 Ves. sr. 193; Hulme v. Tenant, 1 Brown Ch. 14 and note; Jaques v. Meth. Epis. Church, 17 Johns. 581; 4 Porter, 44; Sadler et al. v. Houston, 4 Porter, 208; Long v. White, 5 J. J. Marsh. 230; Sanford v. Marshall, 2 Atkins, 69; Murry v. Barbe, 3 My. & K. 220; 15 Ves. 599; 4 Russ. 112; 2 Roper on Hus. & Wife, 246; 2 Story's Eq. §§ 1400, 1401; Clancy on Rights, 346; Coates et al. v. Robinson, 10 Mo. 757; 1 Craig & Phil. 48; Gardner v. Gardner, 22 Wend. 528; Smart v. Kerwall, 3 Mod. 200.

L. M. Shreve, for respondent.

I. In equity the estate of a married woman can not be held bound for debts contracted by her unless she intended to bind her separate estate, or the debt was for her use and benefit. (Wilson v. Cheshire, McCord's Ch. R. 241.) The bare execution of a note by a feme sole would not create a lien upon her property. (Sugden on Powers, 110.) The petition in this case alleges nothing against Mrs. Cannon but the bare fact that she, along with her husband, made the note sued on. Nothing is stated tending to show that in fact the note had any relation to the property; and, for aught that appears in the case, Jno. M. Cannon, the joint maker of the note, is able and willing to pay the note, and is liable in law to pay it. At most, Mrs. Cannon is but security.

LEONARD, Judge, delivered the opinion of the court.

The question here is, as to the liability in equity of a married woman's separate estate to the payment of her debts. This species of property, whether in things real or personal, is exclusively the creature of a court of equity; and before we express our opinion on the question now before us, it may not be out of place to refer to its origin, gradual development and present state in English equity law.

Whenever a trust is created, the property affected by it is subjected to a double ownership--the legal ownership in the trustee, and an equitable ownership in the cestui que trust--the latter, although in strictness a mere equitable right to a specific execution, being considered in equity as the estate itself. But this equitable property is governed generally by the same principles that are applicable to legal estates. The terms in which the trusts are declared are interpreted by the ordinary rules of law, and the equitable ownership subjected to the same restraints as the legal property. To this latter rule, however, two exceptions have been allowed, both having reference to married women--one in what are called the separate use and pin-money trusts, which enable married women to acquire and enjoy property independent of their husbands, and allow such property to be made inalienable--and the other, in the wife's equity for a settlement, which restrains the husband's marital rights over her equitable chattels, real and personal choses in action, until an adequate settlement has been made. The purpose of the separate use trust was to exclude the rights of the husband, and to secure the property to the wife during coverture; and the effect of it was, to enable a married woman, in direct violation of common law principles, to acquire and enjoy property independently of her husband, and to enter into contracts, and incur liabilities, in reference to such property, and to dispose of it as a feme sole, notwithstanding her coverture and consequent disability at law; in a word, it created a new species of estate unknown to the common law, and in direct violation of its principles--a separate estate in the wife, free from the husband's rights, and subject to her disposition as a feme sole. Two opinions seem to have prevailed as to the wife's power of disposition over it-- one, that she was to be regarded in equity as a feme sole owner, with all the powers of disposition incident to the ownership of property, unless expressly restrained in her control over it by the instrument of gift--and the other, that she was only entitled to the fruits of the property during coverture, and had such power of disposition as was expressly conferred upon her by the instrument creating the estate. The first opinion seems to have prevailed in England from the origin of this species of property until the end of the eighteenth century, or at least until Lord Thurlow retired from office in 1792; and it is said that the only case during this whole period in which this doctrine was denied, is the case of Hume v. Tenant, (1 Bro. C. C. 16,) to be hereafter more particularly referred to, when the bill, upon its first hearing before Chancellor Barthurst, was dismissed; and a reference to a few of the cases will illustrate the principle that prevailed in equity upon this subject during all this time. The first case of any importance is that of Norton v. Tuberville, (2 P. Will. 144,) decided in 1723, where a married woman, with a separate estate, had borrowed money and given her bond, and it was objected that her bond, she being a feme covert, was void at law, and that then the money vested as a loan, and was barred by the statute of limitations. But it was decided that, although the bond was so far void as not to be suable at law, it was valid as a charge against the wife's separate estate. In Stanford v. Marshall, (2 Atk. 68,) decided in 1740, a father had created a trust of real estate, and directed the rents and profits to be paid to his daughters, whether sole or covert, for their separate use, either into their own hands or into those of any other person whom they might appoint. The daughters joined their husbands in bonds for money loaned to the latter; the trustees refused to pay, and the creditors brought a bill to have the rents and profits of the real estate applied to the payment of their debts, and it was so decreed, the court saying that the daughters had an absolute power over the rents and profits, and could create any lien they pleased upon their interest in the estate. In Grisby v. Cox, (1 Ves. sen., 517,) decided in 1750, an estate was settled, upon the marriage of a lady, in trustees, to receive the rents and profits for her separate use, and as she should appoint, whether sole or covert. The wife, by deeds of appointment, sold part to the plaintiff, and the husband covenanted that the purchase should be free from incumbrance. A bill was filed by the purchaser to have the effect of this bargain. The chancellor said, it was impossible not to decree for the plaintiff; that the rule of the court was, that, where any thing was settled...