Wife v. Francois

• Decision Date: 31 December 1849
• Citation: 5 Tex. 195
• Parties: HOLLIS AND WIFE v. FRANCOIS AND BORDER.
• Court: Texas Supreme Court

5 Tex. 195

HOLLIS AND WIFE

v.FRANCOIS AND BORDER.

Supreme Court of Texas.

December Term, 1849.

The doctrines of courts of equity, as to the power of married women over their separate estates, are not recognized as rules by which the power of married women over their separate estates under our statute and their consequent liabilities are to be determined. The statute has prescribed a special mode for the conveyance of the property; and unless this mode be pursued the wife has no power to charge her separate estate, except for necessaries for herself and family, and for expenses incurred for the benefit of her separate property. A note given for these, alone or jointly with the husband, creates a legal liability, which can be enforced against either the common property or the separate property of the wife at the discretion of the plaintiff. (Note 34.)

The power of the wife in equity to mortgage her separate estate was quite clear. She could mortgage her separate property for the payment of her husband's debts; she could give it to her husband, and a mortgage or other charge upon it was regarded pro tanto as an appointment. These depositions in favor of the husband were closely scrutinized, and required to be free from symptoms of fraud, coercion, or undue influence. She was not restricted to the conveyance by fine; nor was a private examination required to give validity to her deed. (Note 35.)

Under our former laws the wife could alienate her separate property with the consent of the husband, and in case of his refusal or absence, by authorization of the judge.

The statute which provides a mode in which married women may dispose of their separate property applies to the transfer of the most insignificant article. The restriction has, however, been so far removed as to authorize her separate estate to be charged with necessaries for herself and family and for expenses incurred for the benefit of her separate property.

The wife may, in the mode provided by the statute for the conveyance of her separate property, pass her whole estate for the payment of the husband's debts, and her competency, under the same sanctions, to pass a less interest or to incumber her estate cannot be questioned.

The general rule is that where a wife joins her husband in a mortgage of her estate for his benefit, as between the husband and wife, the mortgage will be considered the debt of the husband; and after his death the wife or her representatives will be entitled to stand in the place of the mortgagee, and have the mortgage satisfied out of the husband's assets.

Where suit is brought to enforce a mortgage upon the wife's separate property, which was made for the husband's benefit, if it be shown that the husband has separate property or that there is community property, the court would doubtless have competent authority to decree payment out of such property, if sufficient, and if not, the balance to be satisfied out of the separate property of the wife incumbered with the charge.

Even where the forms of the law are all complied with, the courts will examine with vigilance transactions in which the wife disposes of or charges her separate property, and protect her from undue influence or the fraud or compulsion of her husband and others; but such fraud, &c., must be averred by the wife, and be sustained by proof.

It appears that under our former laws the wife could validly incumber her separate estate, even in favor of her husband, by renouncing the immunities guaranteed to her by law.

Appeal from San Angustine. The petition stated that Elizabeth L. Hollis, the wife of William Hollis, was on the first day of November, 1845, ostensibly the owner of a number of negro slaves in the possession of the said William, which slaves were held by John G. Love, as trustee for the said Elizabeth, but were in truth and fact, as the petitioners believed, the bona fide property of the said William. That during the year 1845 the said William and Elizabeth purchased of the petitioners a wagon, three mules, farming utensils, provisions, and other necessaries for the family of the said Hollis, and to carry on the farming business of the said William and family by the joint consent of the said William, Elizabeth, and the said John G. Love, as trustee for the said Elizabeth; and that in consideration thereof the said William and Elizabeth executed then their writing obligatory to the petitioner for the sum of five hundred and seventy-eight dollars and twenty-one cents; that to secure the payment of the said note the said William, Elizabeth, and the said John G. Love as said trustee, executed and delivered to the plaintiffs a mortgage of two of the said slaves; and that the mortgage deed was duly acknowledged by the said Elizabeth. The deed of mortgage was filed as an exhibit, and prayed to be made a part of the petition; and recited that the wagon, mules, farming utensils, &c., were received by the said Elizabeth. Attached to the mortgage is a certificate of the Chief Justice of the county of the privy examination of the wife, and of her acknowledgment and declaration as prescribed by the statute regulating the mode in which married persons may dispose of their separate property. (Acts of 1841, p. 144.) The jury found for the plaintiffs, and that the facts set forth in the petition were true; and a decree of foreclosure of the mortgage was entered.

J. P. Henderson and Ardrey, for appellant.

Thomas J. Jennings, for appellee.

HEMPHILL, Ch. J.

The grounds upon which the appellants rely to show that the judgment is erroneous are--

1st. That the contract of the wife, as a joint promissor with her husband, created no legal liability on her part, and was, as to her, absolutely null and void.

2d. That the mortgage was but an accessorial contract, dependent upon the legal liability created by her signing the said note; and that it was null and void, and could not be enforced against her separate property.

The first proposition, if tested by the rules of the common law, or at least those administered in the common-law courts, is undeniably true. The notes, bonds, or agreements of a married woman are absolutely void at law. Her separate existence is merged in that of her husband; and she can make no contract to charge her estate or render herself liable to an action. (3 Mylne & K. R., 209.) But the case is wholly different in equity; her separate existence is there recognized, both as to her rights and the liabilities with which her property may be affected. She is treated in equity, according to the rules of the English decisions, as possessing in a great degree the powers of a feme sole over the separate property in which she has an absolute interest, and possessing, as incidents to her right of property, the necessary powers of charging, incumbering, or disposing of it at pleasure. Her power to charge is clear; and when her intention to do so is manifest, the liability attaches, and the execution of a note by a feme covert is regarded in equity as prima facie an evidence of her intention to charge her separate estate. The note, then, though void at law, can be enforced in equity against the separate estate of the wife, according to the rule of the English decisions; and although a wife incurs no personal liability by the execution of a note, yet it must be satisfied out of the corpus or profits of her separate estate.

The doctrines of courts of equity, as to the power of femes covert over their separate estates, are not recognized as rules by which the powers of femes covert over their separate estates, under our statute and their consequent liabilities, are to be determined. The statute has prescribed a special mode for the conveyance or transfer of the property, and unless this mode be pursued, the wife has no power to charge her separate estate except for necessaries for herself and family, and for expenses incurred for the benefit of her separate property. A note given for these alone, or jointly with her husband, would create a legal liability, which can be enforced against either the common property or separate property of the wife, at the discretion of the plaintiff. (Acts of 1848, p. 77.)

But the principal question in the case is as to the validity of the mortgage.

Before examining the point whether a mortgage executed as was this, with all the solemnities of the law, is valid, I will take a cursory survey of the power of femes covert to effect by mortgage their separate equitable estates. Their power to do so is quite clear. They can incumber them by mortgage for the payment of their husband's debts. They could give the estates to their husbands, and a mortgage or other charge upon them is regarded pro tanto, as an appointment of the separate estate. (6 Coms. R., 412; 17 Johns. R., 549;...