| Miss. | Oct 15, 1870
The record shows that the complainant, Anderson B. Manning, sold and conveyed to Ellen E. Gordon and A. H. Bilbo, a tract of land for $1,600. That Mrs. Gordon, in part payment for the land, gave her note to the complainant for $400, upon which a balance is still due. Subsequently Bilbo sold and conveyed his moiety of the land to George W. Thompson, who conveyed the same to Williams. The deed from Bilbo to Thompson is dated June 13, 1863. The date of the deed from Thompson to Williams is October 1,1864.
Williams defends against the vendor’s lien, arising upon the sale by Manning to Mrs. Gordon and Bilbo, on the fact that he is an innocent purchaser. The deed from Manning to Mrs. Gordon and Bilbo,, recites that the consideration money has been paid in hand. This recital is not conclu, sive upon the grantor, so as to preclude evidence that the
Williams is chargeable with constructive notice of this deed. When he examined tips records, as they affected this title, the 1st October, 1864, the date of his purchase, as he maybe supposed to have done, he might well infer, from the recital in the deed from the complainant to Mrs. Gordon and Bilbo, “ that the price of $1,600 had been paid in hand,” and, therefore, there was nothing due, and no incumbrance on the land; There is an absence of proof to charge him with notice of complainant’s equity and his defense has been sustained. But it may well be doubted whether the moiety of the land owned by him would be liable, for the portion of the purchase money assumed to be paid by Mrs. Gordon, although he might have had notice. Equity, it would seem, ought first to exhaust the land conveyed to her, for any part of the price agreed to have been paid by her, before resorting to the moiety, bought by Bilbo, and through him derived to Williams. This point is barely suggested, not proposed for discussion, and decision.
It is contended on behalf of Mrs. Gordon, that the note for $400, which she executed to the complainant, is void, because of her coverture; this being a contract which she was not authorized by law to make. But a married woman may acquire property by “ will, descent, distribution, and of conveyance,” etc., and property thus accruing to her, or “otherwise” (in any other mode), shall be “her separate property.” Code, 335, art. 23. To say that a feme covert cannot take property, by a “ deed of conveyance, would be to fiy in the very face of the statute. To hold that she can purchase, on credit, so as to put in hazard her separate
In former adjudications not yet reported, we have held that \hefeme covert is not liable in a suit at law, upon a note or promise given for property bought on credit; but that she cannot decline to pay and at the same time keep the property ; whilst she is forbidden to incur this sort of liability, and cannot put in hazard her separate estate, she must either pay the money or restore the property, or a court of chancery will follow the property and appropriate it to the debt. And in doing this, there is manifest propriety and justice. This case serves as the example. The price of the moiety of this land to Mrs. Gordon, was eight hundred dollars. Of this sum, she has paid all except about one hundred and fifty dollars. If the complainant is permitted to subject the land to this balance, she would be entitled to receive the surplus, after satisfying the complainant.
If the respective rights of the parties were to be worked out on the theory of a rescission, the complainant would be entitled to an account of the rents and annual value of the premises, to be credited by the payments made by Mrs. Gordon on the land. But Mrs. Gordon has not applied, by. cross-bill, for a rescission, and that view of the subject, or her claims and equities under it, do not arise. We are satisfied that the complainant is entitled to a sale of the land, if Mrs. Gordon does not pay the balance of the debt. We are further of the opinion that if, upon sale of the land, it should not satisfy the debt, Mrs. Gordon is no further liable, nor is her separate estate, on account of this indebtedness, either at law or in a court of equity.
3d. Is the proof sufficient of the loss of the note, without collecting the evidence on the subject? We think it is enongh to convince that the note has been lost.
If Mrs. Gordon, by the loss of the note, is exposed to danger, at the suit of any person who may find the note, and hereafter sue upon it, then she ought to have a surety. Our statute has most materially modified the law merchant, as to the effects and consequences of the negotiation of commercial paper. The most material part is, that Mrs. Gordon can make the same defense against this note, in a suit, by a remote holder, as she could against the complainant, the payee. We have seen that her coverture is a complete defense — that there is no legal responsibility on the note. There can be no risk, then, that she may be compelled to pay it. But, inasmuch as she may be subjected to suit, by some casual ■finder of the paper, and incur costs in making defense, she ought to be indemnified against all costs, damages, etc., to which she may be exposed.
Whilst affirming the decree, we direct, that before the complainant shall proceed to the execution of the same, the chancery court require of the complainant a bond, with security, indemnifying the defendant, Mrs. Gordon, against costs and damages that may be incurred in any suit that may be brought on the note.