Williams v. Hugunin

• Citation: 69 Ill. 214,1873 WL 8439,18 Am.Rep. 607
• Parties: MARY C. WILLIAMSv.HIRAM L. HUGUNIN.
• Decision Date: 30 September 1873
• Court: Supreme Court of Illinois

69 Ill. 214

1873 WL 8439 (Ill.)

18 Am.Rep. 607

MARY C. WILLIAMS

v.HIRAM L. HUGUNIN.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was a bill in equity, by Hiram L. Hugunin against Mary C. Williams, to subject her separate estate to the payment of a note of her husband, which she had indorsed. The opinion of the court states the facts of the case.

Messrs. PAGE & PLUM, for the appellant.

Mr. E. A. OTIS, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This bill was to subject the separate estate of a married woman to the payment of a debt which, it is alleged, was, by implication, charged upon it.

It is alleged, in substance, the husband of appellant executed the note in controversy, payable to the order of appellee, upon which appellant indorsed her name before its delivery; that she had separate property over which she exercised the powers of a feme sole; that the note was executed and indorsed with the intention of charging it upon such separate estate. Appellant admits she has separate property; that she indorsed the note substantially as charged, but denies that her separate estate received the benefit of the consideration, and alleges it was done solely to secure the indebtedness of her husband; hence, she insists, it was of no legal or binding effect on her or her property. The evidence shows appellant was merely indorser for her husband; that she never received any part of the consideration for which the note was given, nor was it given in relation to or for the benefit of her separate estate. It is not claimed she expressed any intention to charge her separate estate with the payment of the indebtedness of her husband by any act other than indorsing the note itself.

It is insisted the indorsement or guaranty of the note by appellant, without any other act on her part expressing an intention so to do, charged her separate property with its payment. This exact question has not heretofore been passed upon by this court.

The English cases most generally follow the doctrine in the case of Hulme v. Tennant, 1 White's Leading Cases in Equity, 324. That was a bill brought by the obligee on the joint bond of the husband and wife, to enforce payment out of the separate property of the wife. Her separate property was held liable on the principle stated by the Chancellor, that “if a court of equity says a feme covert may have a separate estate, the court will bind her to the whole extent as to making that estate liable to her own engagements, as, for instance, the payment of debts, etc.” The case rested on the doctrine that a feme covert, acting with respect of her separate property, is competent to act in all respects as if she was feme sole, and that rule was said to be necessary to support the decisions on this subject.

The rule adopted in that case was substantially followed in Murray v. Bonlee, 3 Myl. & K. 209, and in Owens v. Dickinson, Craig & Phillips, 58, but the conclusion was reached upon a somewhat different process of reasoning, and the relief decreed placed on different grounds.

In Murray v. Bonlee, supra, the foundation of this doctrine was said to be this: “The wife has a separate estate subject to her own control and exempt from all other interference or authority. If she can not affect it, no one can, and the very object of the settlement which vests it in her exclusively is, to enable her to deal with it as if she were discovert. At first, the court seems to have supposed that nothing could touch it but some real charge, as a mortgage, or an instrument amounting to an execution of a power, where that view was supported by the nature of the settlement. But afterwards her intention was more regarded, and the court only required to be satisfied that she intended to deal with her separate property.” Thus, if she only executed a bond or made a note, or accepted a bill, because these acts would have been nugatory if done by a feme covert without any reference to her separate estate, it was held that she must have designed a charge on that estate, since in no other way could the instrument made by her have any validity or operation.

In Owens v. Dickinson, supra, relief was granted on the principle that the separate property of a married woman being the creature of equity, if she has the power to deal with it, she has the other power incident to property generally, viz: to contract debts to be paid out of it; and inasmuch as her creditors have not the means at law of compelling payment of those debts, a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property as the only means by which they can be satisfied.

The difficulty of obtaining a satisfactory reason for the rule may be seen in the language used by the Chancellor where he says, “it is quite clear there is nothing in such a transaction which has any resemblance to the execution of a power. What it is, it is not easy to define. It has sometimes been treated as a disposing of a particular estate, but the contract is silent as to the separate estate, for a promissory note is merely a contract to pay, not saying out of what it is to be paid, or by what means it is to be paid, and it is not correct, according to legal principles, to say that a contract to pay is to be construed into a contract to pay out of a particular property, so as to constitute a lien on that property.”

All the authorities, however, seem to concur in holding there must be an intention manifested to charge the separate estate, otherwise the debt will not affect it.

Mr. Story says, the difficulty has always been, to ascertain what circumstances, in the absence of any positive expression of...