Williams v. Hancock

• Decision Date: 01 January 1880
• Citation: 35 Ohio St. 296
• Parties: WILLIAMS v. URMSTON AND HANCOCK.
• Court: Ohio Supreme Court

35 Ohio St. 296

WILLIAMS v. URMSTON AND HANCOCK.

Supreme Court of Ohio

JANUARY TERM, 1880

January 1, 1880

1. A married woman, having a separate estate, may charge the same, in equity, by the execution of a promissory note as surety for her husband or another.

2. Where a married woman, having a separate estate, executes a promissory note as surety for the principal maker, a presumption arises that she thereby intends to charge her separate estate with its payment. And a court of equity will carry such intention into effect by subjecting such estate to the payment of the debt, in the mode prescribed by the statute. (Levi v. Earl, 30 Ohio St. 147, and Rice v. Railroad, 32 Ohio St. 380, in so far as they conflict with the decision in this case, are overruled.)

ERROR to the District Court of Butler county.

The action below was brought by the defendants in error against James Williams and Mary, his wife, upon a promissory note, of which the following is a copy:

$503.88.] MILLEVILLE, OHIO, August 5, 1870.

On or before the first day of January next, we, or either of us, promise to pay unto Urmston & Hancock, or their order, the sum of five hundred and three dollars and eighty-eight cents, value received, with ten per cent, interest till paid.

[U. S. Revenue Stamp, canceled, 30c] JAMBS WILLIAMS, MARY J. WILLIAMS.

The object of the action was to subject the separate estate of Mrs. Williams to the payment of the note. She was the owner of a separate estate, consisting of real and personal property of the value of $10,000. It appears from the testimony of the defendant, Hancock, that the note was given for goods bought by Williams and wife at the store of the defendants; that during the year 1868 Williams, to the knowledge of the defendants, became financially embarrassed, and before the note was given in 1870 was wholly insolvent; that during the years 1868 and 1869, Mrs. Williams, when purchasing goods at the store of defendants, said to them, "we will see you paid;" on the faith of which statement goods were sold and charged to the account of Williams; that in August, 1870, Hancock informed Williams that he wanted security for the debt, and gave him a note to have his wife sign, extending the time for its payment until January 1, 1871, which Williams took to her, and procuring her signature thereto, returned the same to the defendants. This note is the one in suit.

Mrs. Williams testified that she signed the note at the request of her husband, not knowing what it was, and denied that she ever agreed to pay for the goods bought at defendants' store.

Williams also testified that he asked his wife to sign the note, but did not tell her what it was. On rebuttal, it was shown, in contradiction of a statement of Mrs. Williams, that she testified on a former trial that Urmston was present when she signed the note.

The foregoing is the substance of the material evidence given at the trial. The district court found that Mrs. Williams intended to charge her separate estate with the payment of the note, and decreed accordingly.

Mrs. Williams moved for a new trial, on the ground that the judgment of the court was against the law and the evidence; which motion was overruled, and an exception taken. This judgment, it is now sought to reverse.

Butterworth & Vogeler, and J. E. Neal, for plaintiff in error:

In order to charge the separate estate of a married woman—

1. It is necessary that the debt with the payment of which it is sought to charge her separate estate should have been contracted for the benefit or use of such separate estate, or for the sole use and benefit of the married woman whose estate is sought to be charged.

2. Or that the money should have been loaned, or the goods delivered, or the credit given, in the first instance, on the promise, expressly made, by the married woman, that she would pay, and hence impliedly charging her separate estate.

3. If neither of the conditions mentioned above are found to exist, but the fact yet appears, that a wife having a separate estate has signed a note merely as surety for, or at the request of, her husband, and because he requested it, the consideration of said note being an antecedent debt of the husband, for the payment of which the wife was in no wise liable, as in this case, the court will not hold her, by that act, to have charged her separate estate.

In Hume v. Tenent, decided by Lord Thurlow, 1 Bro. C. R. 14; Peacock v. Monk, 2 Ves. 190; Allen v. Popworth, 1 Yes. 164; Crosby v. Church, 3 Beav. 489; Owens v. Dickinson, 1 Craig & Phil. 48; Bullpin v. Clarke, 17 Ves. 365; Murry v. Barlee, 3 My. & K. 220, decided by Lord Brougham; Fullet v. Armstrong, 4 Myl. & C. 377, decided by Lord Cottenham—as well as the cases cited by the lord chancellor, in each of those oases—the debt, whether evidenced by note, bond, or otherwise, was contracted or incurred for the use and benefit of the married woman, or for the use and benefit of her separate estate. Or, if not for either of these, then the money was loaned or the goods sold, on the express promise (as in the case of Phillips v. Graves) of the married woman that she would pay the debt so created. And this was, in each case, distinctly understood, i. e., the credit was in the first instance given to her.

In the case at bar, all the essential elements necessary to charge the separate estate of Mrs. Williams are wanting. Athal Machine Co. v. Butler, 107 Mass. 437; Williams v. Eastham, 13 Gray, 328; Kimm v. Weiper, 46 Mo. 532; Perkins v. Elliott, 23 N. J. Eq. 526; Miller v. Brown, 47 Mo. 504; Deering v. Boyle, 8 Kansas, 525; Yale v. Dederer, 22 N. Y. 450; Levi v. Earl, 30 Ohio St. 147; Rice v. Railroad, 32 Ohio St. 380.

Thomas Millikin and Israel Williams, for defendants in error:

At common law, the note of a married woman was void, but, in equity, she could charge her separate estate with its payment. This might be done by a promissory note. Phillips v. Graves, 20 Ohio St. 386. The law of 1866 makes all the wife's property her separate estate. S. & S. 391.

The effect of the statute was to make a married woman personally liable for a certain class of debts, and to enlarge the jurisdiction of equity, to charge with payment of other debts all her property. 20 Ohio St. 383-390; 71 Ohio L. 47. And you may show by parol, that she intended to charge her separate estate. 20 Ohio St. 386.

A married woman can charge her separate estate by signing an instrument as security for her husband, or even for a stranger. Corn Exchange Co. v. Babcoclc, 42 N. Y. 613; 17 Johns. 548; Yale v. Dederer, 18 N. Y. 265; 22 N. Y. 450; Owen v. Canly, 36, N. Y. 600; 37 N. Y. 35; 42 N. Y. 638; 20 Ohio St. 372; 2 Story's Eq. § 1400, and note 1 (new ed.); Woolsey v. Brown, 74 N. Y. 83; Deering v. Boyle, 8 Kansas, 525; Wicks v. Mitchell, 9 Kansas, 80; 1 Bishop on Married Women, § 873; Keim v. Wippart, 46 Mo. 532; Miller v. Bvown, 47 Mo. 504; Todd v. Lee, 15 Wis. 365; 1 Am. L. R. 665; Maxwell v. Scott, 55 N. Y. 247.

Levi v. Earl and Rice v. Railroad Co. are opposed to Phillips v. Graves, which last ease, we submit, lays down the more consistent and practicable rule.

BOYNTON, J. The district court found from the evidence that the plaintiff in error intended to charge her separate estate with the payment of the note sued on, and decreed accordingly. The question now presented is, was there error in such finding? It has long been the settled law of this court, that a finding of facts, from the evidence, by the court trying the cause, will not be disturbed by a reviewing court, unless it clearly appears that such finding was not sustained by the evidence given at the trial. Merrick v. Boury, 4 Ohio St. 60; Dean v. King, 22 Ohio St. 134. But we need not invoke the application of this rule to the present case, as we are of the opinion that the finding was fully warranted by the evidence.

The husband of the plaintiff in error, at the time the note was executed, was, to her knowledge, wholly insolvent. When the debt was contracted for which the note was given, as well as at the date of the note, she was possessed of a valuable separate estate, of which fact the defendant in error had knowledge; and, according to the testimony of one of them, she assured them that the goods for the payment of which the note in part was given should be paid for. The time for the payment of the note was extended for the period of nearly six months from its date. In view of these facts, the inference is, at least, a reasonable one, that, by executing the note as surety for her husband, she thereby intended to charge her separate estate with its payment. It is not claimed that she was deceived or imposed upon, or subjected to any improper or undue influence, or that she executed the note for any other purpose or object than the one naturally to be implied from the act itself, and the circumstances surrounding it.

The power of a married woman to bind her separate estate, in equity, for the payment of a promissory note, on which she becomes a surety, although denied in Perkins v. Elliott, 23 N. J. Eq. 526, is sustained by a great weight of authority. It rests on the principle, now well settled in courts of equity, that, as respects her separate estate, she is to be treated as a feme sole to the extent of her power of disposition over the same, and as fully capable of binding it by engagements entered into in respect to it as if the common-law disability of coverture were removed. And, except in cases where she may bind herself at law, the principle applies to separate estates under the statute, as well as to estates settled to her sole and separate use, by deed or devise. Any engagement that she could enter into were she sui juris, and by which she could create a debt binding at law, she may in equity charge upon her separate estate, unless in so doing she exceed the limitation, if any there be, upon the jus disponendi. Pollock on Principles of Contracts, 73.

Where this charge is made, her estate,...