85 Va. 353 | Va. | 1888
delivered the opinion of the court.
As this case involves to some extent the construction of the act of assembly passed April 4, 1877, entitled “an act securing to married women, on conditions, all property acquired hy them before or after marriage,” see Acts 1876-77, ch. 329, p. 333, it is deemed advisable to set out in detail the sources from which the property claimed as the separate estate of the fema'e appellant was derived.
On the 6th day of May, 1874, as fully appears by the record, Sue J. Boyd, a femme sole, received, as a legatee of one Anne Davidson, the sum of $1,000 which, very soon after, to wit: in May, 1875, she loaned to H. Alexander, taking his bonds therefor, with J. B. Alexander as his security. And fór this debt, with accrued interest, she subsequently, to-wit: in April, 1881, took a new bond from these same parties ; and this latter bond it is which is the foundation of the larger of the two judgments hereinafter mentioned.
In the month of March, 1874, Andrew Boyd, the father of the said Sue J., died, having bequeathed to her a legacy of $800, subject, however, to a deduction of $177, the value of a horse, bridle and saddle, which she had received as an advancement, which horse, with his equipments, seems to have been soon disposed of, exactly in what way does not appear. At the death of the testator, her father, his family consisted of his wife, this daughter, Sue J., and two unmarried sons, John and Andrew, his six other children having homes away.
After the death of the testator, the widow and her said three unmarried children continued to reside on the farm—the said children leasing the farm and personal property from the widow for a merely nominal sum and farming in partnership.
On the 30th of December, 1875, this Sue J. Boyd intermarried with James O. Alexander, a brother of the three Alexanders herein mentioned.
In November, 1878, she received the sum of $256, a part of
Upon the death of her mother in February, 1880, Mrs. Alexander became seized and possessed in fee of a one undivided ninth part of a tract of land situated in Pulaski county, containing four hundred and fifty acres, and worth about nine or ten thousand dollars, and shortly thereafter the said Sue J. and her brothers, John and Andrew, bought out the shares of the other children and received conveyances therefor, the interest of Mrs. Alexander being conveyed to her sole and separate use, free from the control and debts of her husband, By these conveyances, and the devise of her father, Mrs. Alexander and her two brothers became the owners of all the real estate of which her father died seized, each owning one undivided third. And in making her purchase of two-ninths of this property it is admitted that she never received from her husband, directly or indirectly, one dollar in money, labor or assistance of any kind or character. Indeed, so far from receiving assistance from her husband, the record shows that she gave him several hundred dollars to aid him in his business schemes and herself provided for her family. About this time, in 1881 or 1882, and probably before she had entirely finished paying for her two-ninths of this land, she also received $232 as her distributive share of the personal property which her father had bequeathed to her mother as her absolute property, and $700, her one-third of the land damages assessed for the right of way for a railroad which it was proposed to run through this farm.
On the 23d of October, 1883, the said H. Alexander and J. B. Alexander, acting through their authorized attorney, in fact
Such being the posture of affairs, at February rules, 1885, James O. Alexander and Sue J. Alexander filed their bill against J. B. Alexander, H. Alexander, M. J. Alexander and J. C. Alexander, the judgment debtors of the said Sue J. Alexander, to subject their real estate to the satisfaction of her .said judgments. At the same rules the said H. Alexander filed his bill against the said J. O. Alexander, Sue J. Alexander and A. Boyd, in his own right and as executor of his father, A. Boyd, Sr. The object of this last-named suit was to have all the property of Mrs. Sue J. Alexander, real and personal, declared liable for her husband’s debts, and to have the judgment of H. Alexander against J. Alexander set off against the judgment of Sue J. Alexander against H. Alexander and others.
J. B. and H. Alexander answered the bill of J. O. Alexander and Sue J. Alexander, and while admitting the justice of the debts against them, they claim that James O. Alexander is wholly insolvent, and insist on their right to set off their judgment against J. C. Alexander against the judgments of Mrs. Alexander against them.
The bill of H. Alexander was answered by Mrs. Alexander. Her answer, after setting forth the facts, denies that her property, real or personal, or any part of it, is liable for her husband’s debts, or that the judgments against her husband can be set off against her judgment against H. Alexander and others. The
Upon an inspection of this record and decree, two preliminary questions arise, and must be disposed of before we proceed to discuss the more general question, how much of all this property which has been mentioned is to be regarded, under the act of April 4, 1877, known as the married woman’s law, as the separate estate of this wife, Mrs. Sue J. Alexander.
The first of these questions is, did this appeal bring up both of these causes for review? Upon this point there can be no sort of difficulty. These causes were heard together’and the decree was rendered in both suits. That decree not only passes upon the rights of the plaintiffs in one bill, but it passes upon the rights of the plaintiffs in the other suit also. To the extent that it holds the property in controversy to be the separate estate of the wife, and not the property of the husband, it withdraws that property from the lien of the appellees’ judgment against her husband. It is impossible, therefore, for this court to pass upon the rights of this appellant without passing upon the rights of the appellees also. The appellant in bringing her rights here for adjudication has, therefore, of necessity, brought up the rights of the appellees also, and the suit instituted by the appellees must be regarded as before us as much as if it had
The next question is, did the court err in overruling the demurrer of M. J. Alexander to the bill filed by J. O. Alexander and wife. We think not. As Lord Oottenham said, in Campbell v. Mackey, 1 My. & Cr. 603, it is utterly impossible, upon the authorities, to lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition. Lor “the cases upon the subject are extremely various, and the court, in deciding them, seems to have considered what was convenient in the particular circumstances, rather than to have attempted to lay down any absolute rule.” Yet, it will seldom, if ever, be found difficult to determine whether multifariousness exists in the particular case, if we will only bear in mind these cardinal rules upon the subject, namely, that a bill will always be deemed multifarious, where several matters joined in the bill against one defendant are so entirely distinct and independent of each other that the defendant will be compelled to unite, in his answer and defense, different matters wholly unconnected with each other, and as a consequence the proofs applicable to each would be apt to be confounded with each other, and great delays might be occasioned respecting matters ripe for hearing by waiting for proofs as to some other matter not ready for hearing ; or again, where there is a demand of several matters of a distinct and independent nature, in the same bill, rendering the proceeding oppressive because it would tend to load each defendant with an unnecessary burden of costs by swelling the pleadings with the statement of the several claims of the other defendants, with which he has no connection.
Another objection urged hy the appellees, which at first gave me some concern, was the circumstance that one of the two judgments, the liens of- which are sought to be enforced against the real estate of the defendants in this suit, was confessed by an attorney in fact, acting under a joint power of attorney, executed by H. Alexander and the firm of J. B. Alexander & Co. (a firm in which the husband is a member), which power of attorney had three seals attached, to the first two of which were annexed the names of H. Alexander and J. B. Alexander, and to the last of which seals was annexed the firm name of J. B. Alexander & Co., and that a judgment thus obtained was a mere nullity, not capable of enforcement. But, upon reflection, whatever doubts I had upon the subject have been dispelled. The pith of the objection, it will be perceived, is that, as a partner cannot usually bind his co-partner under seal, see Cady v. Shepherd, 11 Pickering, 400; S. C. 22 Amer. Dec. 379; Galt’s Ex’or v. Calland's Ex'or, 7 Leigh, 594, and especially that one partner cannot bind a co-partner by a confession of judgment, though under seal, see Bitzer v. Shunk, l W. & S. 340; S. C. 37 Amer. Dec. 469; Morgan v. Richardson, 16 Mo. 409; S. C. 57 Amer. Dec. 235, this judgment against the firm must be regarded as a nullity, except as to the partner whose name is subscribed to it. But these principles cannot be,regarded as having any application to the case at bar. For, it having been expressly decided in this State that a power of attorney to confess a judgment need not be under seal, see Coker, &c., v. Wynne’s Ex’or, 2 Va. L. J. 377, and there being no proof that all the members of the firm were not consenting to the execution of the power of attorney, it must be held valid when it is assailed in this collateral way. Lancaster v. Wilson, 27 Gratt. 624; Brockenbrough’s Ex’or v. Brockenbrough’s Adm’r, 31 Gratt. 581; Shadrack’s Adm’r v. Woolfolk, 32 Id. 709-10-11; Neale v. Utz, 75 Va. 484, and cases cited. It follows, therefore, unless there
Even less can be urged against the propriety of the action of
We come now to the question of first importance in this case, which is, how much and what part of the real and personal property, heretofore mentioned as having come to the possession of this married woman, is to be deemed her separate estate within the purview of this married woman’s act. How, this act being obviously an enabling act, it should not be construed strictly, as in derogation of the common law, nor technically, but fairly, so as to carry out tbe intention of the legislature, which is to secure to the feme covert, as separate estate, free from the debts, liabilities and disposal of the husband, all of the property acquired at the times and in the ways pointed out in said act, and not in anywise to affect or change the personal relations of husband and wife which enter into the status of marriage. 2 Bishop on the Law of Married Women, §§ 18, 19, 20, 21, 22, 23 ; Wells’ Sep. Prop. Married Women, § 8; Schouler on Husband and Wife, § 211. Eor, says Judge Cooley in a late
. The first section of this act, said Burks, J., speaking for the court in Williams v. Lord & Robinson, “secures a separate estate to the woman in the property owned by her at the time of her marriage, and the rents, issues and profits thereof, and also in the property acquired by her during marriage as a separate and sole trader, while the second section secures, to her such separate estate in all property acquired by her after and during marriage in either of the modes designated in that section.” T6 Va. 398. In this act the word acquired refers, to the actual possession and control of the property rather than to the acquisition of mere title. Such seems to have been the construction given to a somewhat similar act by the supreme court of Vermont. In that case the court held that under a statute enacting that all personal property and rights of personal action acquired by any married' woman, during coverture, by inheritance or distribution, shall he held by her to her sole and
This act, as was said by Judge Burks in Williams v. Lord & Robinson, supra, makes radical changes in the legal capacity and property rights of married women in this State. By it she becomes the absolute owner of all the real and personal property “ which she shall own at the time of her marriage, and the rents, issues and profits thereof,” and also of all the real and personal property or estate thereafter acquired, in any of the following modes: that is, “by gift, grant, purchase, inheritance, devise, or bequest,” or as a separate and sole trader, subject only to curtesy consummate in her husband in the event that all the prerequisites shall exist and he shall survive the wife. ISTor do we perceive that there is anything in the act which necessarily impairs any vested right. For, whilst the inevitable effect of any fair construction of the act is to destroy curtesy initiate and to deprive the husband of the right to reduce the choses in action of the wife, including herein a legacy or distributive share, into possession, yet it is believed that neither of these inchoate rights is a vested right which may not be intercepted by act of the legislature and taken from the husband. In Breeding v. Davis, 77 Va. 639, this was distinctly held to be the case as to curtesy initiate where the land descended upon the wife after the passage of the married woman’s act. The language of Judge Lacy, speaking for the court, is “ it is clear that the husband has no interest whatever in the lands of the wife during
Now, applying these principles to this case, it is perfectly
How, as to the first of these provisions, it is clear, and indeed it is conceded, that the larger judgment, held hy Mrs. Alexander against H. and J. B. Alexander, was properly set aside as the wife’s equity. But it was plainly erroneous for the court to relieve all of the obligors except J. C. Alexander from the payment of the smaller judgment, and then set it and the bond due by Caddell aside as a part of the wife’s equity also, for the simple reason that both of these demands are clearly part of the statutory separate estate of this married woman. The money due by judgment being a part of the legacy from her father, which never came into her possession until after the passage of the married woman’s act, and the money for which the Caddell bond was taken being a part of the damages allowed her by the commissioners in 1882 for the right of way of the Cripple Creek railroad over her land. Hor had the court any right to release any of the obligors from the payment of one-third of this judg
Again, the court erred in deciding that J. O. Alexander was tenant by the curtesy of one-ninth and entitled in fee simple to one-eighteenth of the Boyd land. For, as we have seen, tenancy by the curtesy initiate has been done away with by the married woman’s act, and there is not a particle of evidence that we can find justifying the idea that any part of this land owned by the wife was bought with money belonging to her husband or to which he could possibly be entitled. As the record clearly shows, this husband was an amiable, but poor and thriftless being, constantly drawing on his wife for money and oftentimes dependent upon her for the necessaries of life, whilst the wife was an economical, energetic, business woman who, with the tacit consent at least of her husband, was engaged as a sole and separate trader in the business of keeping a boarding-bouse. And that with the proceeds derived from this source, and not from the earnings of her manual labor, and her share of the rents, issues and profits of the farm since the year 1877, which under the careful and prudent management of her brother has yielded well, and perhaps other separate estate, which, without her testimony, we cannot know, she has purchased and nearly paid for two-ninths of this farm of four hundred and fifty acres. 2 Bish. L. M. Women, 529.
Under these circumstances we can perceive no plausible pretext for the claim that any part of this woman’s real estate should be subjected to the payment of this judgment against her husband. For if we could assume, what certainly is not proved and seems utterly improbable, that Mrs. Alexander has
Finally, the court erred in decreeing that the husband was entitled to one-sixth of the personal property and growing crops, and in decreeing a sale thereof for his debts. There is no proof that any part of it was paid for out of any fund to which the husband was entitled, and it is admitted that he never contributed one dollar towards paying for said property, and all of it has been acquired since the 4th April, 1877, presumably, out of her separate property.
We need only add that the decree of the circuit court of Pulaski county is erroneous in the respects indicated, and that for these errors it must be reversed and annulled, and the causes must he remanded with directions to enter a decree in conformity with the views herein expressed and to he further proceeded in to final decree.
Decree reversed.