27 Miss. 347 | Miss. | 1854
delivered the opinion of the court.
The plaintiff in error filed his bill on the equity side of the circuit court of Holmes county, to foreclose a mortgage executed by the defendant in error, a feme covert, and her husband, who died before the filing of the bill.
The bill states that the notes, to secure which the mortgage was made, were executed in the year 1841, by Mrs. Beatty alone, she being then married, and the owner of property in her own separate right; that she became indebted to the plaintiff
To this bill a general demurrer was filed, which was sustained, and the bill dismissed in the court below.
The principal point insisted upon here in support of the demurrer is, that the notes for which the mortgage was given, being executed alone by the wife, were void, and could not support the mortgage subsequently executed by the husband and wife.
It is true, that at law a feme covert is incapable of entering into any valid contract to bind either her person or estate, and that in equity she cannot bind her person or her property generally. But under the rules prevailing in a court of equity, she is regarded, in reference to her separate estate, as acting as a feme sole. Her liability in this respect is, however, held by this court to be so limited by the act of 1839, in relation to the rights of married women, that she can neither convey her separate property nor create any charge upon it, except by the joint deed of herself and her husband. Frost v. Doyle, 7 S. & M. 68. In that case a bill was filed in equity to obtain payment out of the separate property of the wife, of a promissory note made by the husband and wife; and the decision was that her separate estate was not chargeable for the payment of the debt. That case has been followed by several others, both at law and in equity, holding that under similar circumstances, the separate estate of the wife was not liable.
The feature in the present case which distinguishes it from those previously decided is, that a mortgage was executed by the husband and wife to secure the note previously made by her alone; and the question is, whether this note was a sufficient consideration to support the mortgage.
The contract of a feme covert is void by the common law. But it is not void to all intents and purposes. It is neither malum prohibitum nor malum in se. It may be founded on a good and valid consideration, entitling it, in all but its form, to the favorable consideration of a court of justice. In the form in
By the act of 1839, the promissory note of a feme covert is not placed in a worse condition for the holder than it was at common law. It is only incapable in that form of being enforced against her separate property. We have seen, that by the common law she could change the form of the obligation after the removal of her disability of coverture, and that the antecedent valid consideration would support the new promise. So und'er the act of 1839, her note is not void to all intents and purposes, but she has received the valuable consideration for which it was given. That act prescribes the mode in which she may charge or convey her separate estate; and if for a valuable and equitable consideration received by her, she has conveyed her estate in the manner prescribed in that act, we think the transaction valid and legal. She has the same power, under the act of 1839, by deed executed jointly with her husband, to make her previous contracts valid and available according to that act, that she would have at common law to make a new promise after the death of her husband to pay a debt contracted during coverture. This conclusion is plain, unless it can be maintained that the act of 1839 intended to prevent the wife from creating any charge upon her separate property, and to leave her only the power to sell it by the joint deed of her husband and herself. But this court has held that her right of charging her property exists, and that she may execute a mortgage jointly with her husband, to secure a debt of the husband. Bacon v. Sessions, 23 Miss. 272. This decision we think fully sustained by the statute. But if the rigid construction, upon which the objection under consideration is founded, be correct and well founded upon the reason that the statute intended to place the wife’s property beyond all liability for his debts and all power on his part to charge it, the decision cannot be maintained. Doubtless this was the main object of the statute; and this is a sufficient reason for the opinion that the contracts of
The bill in this case alleges that the feme covert contracted the debts for which the mortgage was given on account of her separate estate, and this is admitted by the demurrer. It does not appear whether the separate property was held as such by deed, or under the provisions of the act of 1839. It is treated by counsel as the latter, and we have so considered it.
Under the view we táke of the case, the demurrer was improperly sustained; and the decree is therefore reversed, and the cause remanded for further proceedings.
