Blumer v. Pollak & Co.

18 Fla. 707 | Fla. | 1882

The Chief-Justice

delivered the opinion of the court.

There has been much conflict in the decisions of courts of equity on the subject of the character of the contract of a married woman by which a debt may be created which Avill be a charge, or chargeable upon her separate estate or property, real or personal.

Neither the courts in England nor those of this country are in harmony on the question.

Some of them hold that any credit obtained by her for any purpose, or any promise by her to pay money, whether for her own use or as a security for her husband or another, is sufficient to create a charge upon her separate property. Others hold that a married woman’s debt is chargeable in equity upon her estate only when contracted on the credit of the separate estate, or for its benefit, or for the benefit of the woman, and this, not upon the ground that the contracting of the debt is of itself an appointment or charge, but because she, having had the benefit of the money or property for which she agreed to pay, it is just that her estate should answer it. The subject is very fully discussed in Story’s Eq. Jur., §1400, et seq.; 1 Bish. Law of Married Women, §§854, 1879.

The case of Yale vs. Dederer was before the Supreme Court of New York in 21 Barb., 286; 31 Barb., 525; and in the Court of Appeals in 18 N. Y., 265; and 22 N. Y, 450, in which the subject received a very thorough discussion and all the leading adjudications examined. Selden, J., in the last case, remarks: “ No rule can eyer be stable, the reasons for which are constantly changing. If we desire precision and certainty in this branch of the law, we must recur to the foundation of the power of a feme covert to charge her separate estate, and this has heretofore arisen solely from her incidental power to dispose of that estate. Starting from this point it is plain that no debt can be a charge which is not connected by'agreement, either express or implied, with the estate. If contracted for the direct benefit of the estate itself, it would of course be a lien, upon a well founded presumption that the parties so intended, and in analogy to the doctrine of equitable mortgage for purchase-money. But- no. other kind of debt can, as it seems to me, be thus charged without some affirmative act of the wife evincing that intention; and there is no reason why her acts in this respqct should not be tested by the same principles and rules of evidence which are applied to similar questions in other cases.” All the Judges concurred.

The court in Massachusetts (Willard vs. Eastman, 15 Gray, 328,) indorsed the rule in Yale vs. Dederer. These decisions are strongly fortified by argument and sound reason.

• Whichever rule prevails the bill in the case at bar may be sustained. It alleges that Mrs. Bljumer was carrying on business at Pensacola in her own rigid with the knowledge and consent of her husband, arid in the course of that business, which had been so conducted by her for several years, she purchased goods from complainants with which to replenish her stock of merchandise, and the goods so purchased- are not paid for. This allegation is sufficient to show prima facie that she had separate property and made the purchases to enhance that property.

Under the rule announced by all the courts, though Mrs. Blumer is not liable to be sued at law or in equity to establish a personal judgment against her, yet in equity the court may subject her separate property to the payment of any indebtedness contracted by her for the benefit of such separate property.

Holding that the bill can be maintained for this purpose, we next inquire whether she has such separate property, and whether the furniture in the European Hotel is such property as was found by the decree, and directed tó be sbld to satisfy the claim. That property was ordered by her and shipped in her name, and was put into' the hotel rthere the business of keeping lodgers and boarders was conducted in her name ; the license issued in her name; she advertised the house as kept by her, and provisions and supplies were purchased for the house, and bills made therefor in her name. But the answer of the defendants and their testimony shows that the furniture, though ordered by her and shipped in her name, was paid for in part by the husband and in part by the earnings of the hotel; the monéy to pay for the license was furnished by him ; he rented the house and paid' the rents ; he is indebted to persons about town on account of the hotel; she had no money left of the business formerly carried on, and she had no money invested in the hotel, in the furniture or the business. The hotel business was entered into for. the purpose of support of Blumer and his wife #,nd family, and no money has been made by it beyond that. They live together in the hotel, she having the care and superintendence of it, while he carries on other business out of which he has paid a portion of the expenses of the furnishing, supplying and conducting the hotel.

The answer denies the equities of the bill as to the wife having any present separate property, and this denial is not met by competent proofs in rebuttal. The testimony shows that the property was paid for by him and out of means furnished by him. While the fact was that the bills were made in her name and the business conducted in her name, yet she put no money or property of her own into it. No gift or transfer by the husband to the wife of the property or its proceeds is apparent. Her order of the furniture, though in her name, was the result of his request that she make a list of what they required and “ write on to see on what terms ” it could be procured. . She acted as his agent, as the testimony shows. No fraud is charged Qr proved.

The evidence establishes that the property in the hotel is that of the husband, and is subject to the payment of his debts. No credit was extended to her by these complainants on the faith that she was the owner of this furniture, for it was pi’ocured long after she purchased the goods from them, and was not therefore the basis of her credit.

Our conclusion, therefore, is that the. furniture in the European Hotel is not the separate property or estate of Mrs. Blumer, and that the decree to that effect, and that'it be sold to pay the complainants’ claim, must be reversed, and it is so decreed, with costs against appellees.