42 N.C. 111 | N.C. | 1850
Lead Opinion
The plaintiffs have failed to establish any extraneous circumstance to impeach the conveyance to the defendant. Indeed, the allegations of the bill are expressed in such general terms, that one must suppose that no relief could be expected on them ; and that it was intended to put the relief on the grouud, that the conveyance by a married woman of a slave, held by a trustee to her sole and separate úse, is inoperative. The opinion of the Court, however, is to the contrary; and we hold that a feme covert, entitled to a separate estate in personal property, unless there be some clause of restraint of her dominion, may convey it and*do all other acts in respect to it in the same manner, as if she were a feme sole. That is the settled law of the Court of Equity in England, and was, long before the revolution ; and it is therefor» obligatory upon the Courts here, just as much as any other established rule of property, derived from our ancestors. To go no further back, it was unquestionable law in Lord Hardwicke’s time. In Peacock v. Monk, 2 Yes. 191, he points out the difference in that respect between real estate, and personalty, or the profits of real estate, which in fact is personalty and goes to the executor; and he gives the reasons for the difference. As to personal property, he says, where the wife has a separate use in it, “she may dispose of it by an act in her life time or by will. She may do it by either, though nothing is said of the manner of disposing of it” — that is, in- the settlement, or articles. That has never been denied in Eng
‘The plaintiffs,therefore, who are married women, are concluded by their deed, which in this Courtis considered as passing all their estate ; and, as no relief is sought except against the deed, the bill must be dismissed with costs.
Dissenting Opinion
Dissent. The doctrine of the English cases is, that a married woman, in regard to property secured for her separate use and maintenance, is, in all respects,
A different doctrine is established in almost all of the States of the Union ; and it is held, that, in regard to her separate estate, the wife is considered as a feme covert, subject to all of the common law disabilities, except so far as she can derive a power under the settlement, by its express provisions, and except so far as the’^right to receive and apply the profits for her maintenance. See White’s leading cases in Equity, and the cases there cited, in note, page 370-73.
I consider the question open in this State; for, although the English doctrine has been incidentally alluded to with approbation in several cases, it was not necessary to adopt the doctrine of implied powers, inasmuch as, in those cases, an express power was given. Whenever it is unnecessary to decide a point, the decision ought not to be taken as an authority, for this plain reason, there is no occasion to contest it, and it is, therefore, not “turned over and over” and looked at in every point of view, as it would be, if the case turned on it. Hence, I object to any modification of our law, or to the adoption or building up of any doctrine, by force of obiter opinions, no matter how often they may be repeated.
The case of Frazier v. Brownlow, 3 Ire. Eq. 237, is nearer being an authority than any othér; but there the Court goes further than the facts of the case called for, and it is an authority only to this extent, if the profits of land be secured for the separate use and maintenance of a married woman, she may, with the assent of her hus* band, charge such profits for a debt, admitted to be for articles furnished for the maintenance of herself and family.
The negroes in that case were held by the trustee in the room and stead of the profits of the land, which he had invested in negroes ; and he held them precisely as
So, in this case, as the feme had only a separate use for life in a negro woman, who was having children and wa.s, therefore, of no annual profit, and as, for her maintenance, she had a right to dispose of the profits, and a life estate is only in fact a right to the profits, I should have been willing to put this case upon the ground, that, in disposing of her life estate, she disposed of the profits only.
But the general doctrine was much discussed in this case and in the case of Whitfield v. Hurst, and my brother Judges have concluded to announce the English doctrine, in all of its generality as to implied powers, in relation to the separate estates of married women, and I feel constrained to dissent.
I adopt the American, in preference to the English, doctrine, upon these grounds: It is more consistent with the “reason of the thingIt makes a less departure from the ordinary principles of law : and it is more suitable to the habits and customs of the people of our State.
First: “The reason of the thing.” The common law considered the wife as merged in the husband, so as to be in law but one person. The evil is, that husbands, thus acquiring the ownership and right of disposition, may he improvident, and, by voluntary alienation, or debt, dispose of all the property and leave wives desti tute and without maintenance. The remedy is, to set apart a fund for the separate use and maintenance of the wife; which fund the husband cannot seller make liable for his debts. The evil is remedied by disabling the husband ; and as a remedy for the evil, there is no sort of necessity to go further and enable the wife, by taking away her legal disability and setting her up as a
Wives are as apt to be improvident as husbands ; and it is against “the reason of the thing” to disable the husband and enable the wife, by implication, to become a free trader, as a feme sole. One evil is avoided by falling into another. To remedy this second evil, a learned Chancellor of England suggested, that there ought to be in the settlement a restraint against alienation or anticipation on the part of the wife. Thus, a power is created bjr implication, which it is necessary to restrain by an express provision; in other words, there is a “wheel within a wheel,” and the machinery is made so complicated, that no two Chancellors ever make.it work in the same way.
Secondly : It makes a less departure from the ordinary principle of law. While it admits, that the protection of married women makes it necessary to depart from the rules of the common law, so as to allow property to be vested in a trustee for the separate use and maintenance of the wife, and thereby give her the use of the profits, and to disable the husband from all right to control or dispose of such property, it is careful not to make a greater departure than the necessity of the case calls for, and it only allows the wife to dispose of the property, when she has an express powmr to do so by will or otherwise.
On the contrary, the English doctrine makes an entire departure, and, in regard to her separate estate, the wife, in equity, is to all intents and purposes a single woman and a fxee trader, with implied powers to make a disposition by sale or will, as if she was not married.
When a husband agrees to give up his right of disposition in reference to certain property, and devotes it to the separate use and maintenance of his wife, so as to put it beyond any contingency, as regards his own acts., how
It is said, the right of disposition is an incident of ownership. That is true ; unless the owner is under a legal disability. Admit that the wife is the owner: She is not capable of disposing, because she is under disability ; and the remedy for the evil, as above suggested, is to disable the husband, and not to remove the disability of the wife.
But is it true, that the wife does become the owner ? — ■ There is no necessity for it, because the evil is remedied by allowing the property to be held for the purpose of her maintenance, and to be the property of the husband, subject to this trust. If it be the intention, that it should not only be subject to this trust, for the maintenance of the wife, but that she should have the right to dispose of it by will or deed, let the husband give his consent by an express power in the settlement. This would be but a slight departure from the common law, which allows a wife to dispose of her personal property by will, provided the husband gives his consent. In the absence of an express power, I am at a loss to conceive any ground for implying a power, which is not necessary to carry out the purpose of the settlement, to wit, “the maintenance of the wife.” I here repeat what is said before. A wife maybe improvident as well as a husband ; and the rule, by which she acquires by implication a right to charge and sell and dispose of the property, makes it necessaty, in order to protect her from her own improvidence, and from the influence of her husband, to insert a clause restraining her from alienation or anticipation ; thus making it necessary to violate one rule of the common law, in order to get relief from an implication, which violates another rule of the common law; thus making a complicated system of implied powers and restraints, wholly at variance with the common law.
We have happily refused to adopt the English doctrine of “a part performance of a parol contract,” and the doctrine of “alien” by a vendor, who had executed a deed, for the purchase money, and the doctrine of “a wife’s equity for a settlement,” “because it is not the policy of our law to encourage separate estates,” and the doctrine, that purchasers from trustees are bound to see to the application of the purchase money. Having rid ourselves of these four refined, complicated, and artificial doctrines of the English system of equity, I was in hopes, that we had also got rid of the doctrine of implied powers, in regard to the separate estates of married women; which involves the idea of a married woman being, to all intents and purposes, a feme sole, in regard to her'Separate property— an idea, which, according to the principles of law that I have imbibed, lam unable to comprehend, apart from an express power of appointment.
It is believed, that the effect of the doctrine in England, by which property is not only set apart, as a fund for the maintenance of the wife, free from the control of the husband, but the wife, in regard to the fund, is made a. free trader and is looked upon as a feme sole, has not been at. tended with very happy consequences upon the state of society, because it has produced a complicated relation, very different from the simple state of “man and wife,” as it existed at common law — one person joined together for “better or for worse” — and the English Reports are filled with more cases of divorce, and alimony, and crim. con. than, I trust, will ever be found in the reports of No.'th Carolina. So far, wives in North Carolina have set up no pretensions to be free traders, although an estate was settled for their separate use and maintenance, and they have never attempted to make a will, unless there was an express power.
As the doctrine has been discussed at large, I think it proper to notice a distinction, which may be taken, between a right to sell for the purpose of maintenance, and a right to dispose by will or by gift. Under the countenance of a Court of Equity, and to guard against the improvidence of the husband, a fund may be set apart for the maintenance of the wife, contrary to the rule of the common law. Suppose such a fund is set apart, and admit that in some cases (as in the case under consideration) it is necessary to sell, (or to charge by way of anticipation of the profits,) the current profits not being sufficient for the maintenance of the wife, and that, for this purpose, from the necessity of the case, a right to dispose of the life estate is implied, does this reason extend, so as to make an implication of the right to make a will 1 It is not necessary for her maintenance ; and the right to niake a will, if such was the intention, ought to have been expressly conferred. So there is a clear line of distinction between a right to sell, especially a life estate, which may be necessary to make the fund available, and the right to make a gift or to dispose of it by will, which, I believe, ought not to be implied, and should be conferred by express power.
Pee Con am. Bill dismissed with costs.
Lead Opinion
PEARSON, J., dissented. Upon the pleadings and proof the following case appeared:
On 11 May, 1835, Frederick Ward conveyed a negro girl, Jinny, to Thomas Ward, "in trust to and for the separate use of Nancy Harris, the wife of William Harris, and free from any control of the said William, during the natural life of the said Nancy, and upon the death of the said Nancy upon further trust to hold the said negro and her increase to the sole and separate use of Elizabeth Ledbetter, the wife of Richard Ledbetter, and Sally, the wife of John Scorey, both to be equally interested in said trust; and upon the happening of the death of the said Elizabeth or Sally or both, the said Thomas is to hold the said negro and her increase for the benefit of their children; one-half to the children of Elizabeth and the other half the children of (112) Sally." Elizabeth Ledbetter and Sally Scorey were the daughters of William and Nancy Harris. The negro girl was in the possession of Harris and wife; and, in March, 1838, William Harris, being much indebted and judgments rendered against him for debts for which his sons-in-laws, Ledbetter and Scorey, were bound as his sureties, William Harris and his wife, Ledbetter and his wife, and Scorey and his wife sold the negro woman and one of her children, then six months old, to the defendant, Herbert Harris, for the price of $700, and those six persons made a deed to said Herbert for them, with a covenant of general warranty; and he took them into his possession. He paid the consideration money partly in discharge of the debts mentioned, partly to William Harris, and partly to Ledbetter by the direction of the other vendors. Scorey and wife have four children; and in September, 1841, this bill was filed by Mrs. Harris, Mrs. Ledbetter, Mrs. Scorey and her four children, against Herbert Harris, William Harris, Ledbetter, Scorey, and Thomas Ward, and charges that Herbert Harris knew of the existence and contents of the deed made by Frederick Ward, and that, with such knowledge, he purchased the negroes from William Harris for an inadequate consideration, and that, supposing that he could make his title good thereby, he, by pursuasions and false suggestions and promises and undue influence and control over them, caused and procured the plaintiffs, Nancy, Elizabeth and Sally, *85
and their husbands to sign the deed for the slaves — Ledbetter being induced to do so by receiving a part of the purchase money, and the said Scorey by getting to himself another child of Jinny, then in his possession. The prayer is, that the defendant, Herbert, may be compelled to surrender the slaves and their increase and account for the hires, so that the purposes of the deed of settlement may be performed and for general relief. The answer of Herbert Harris denies all the (113) allegations of fraud and undue advantages, sets forth the terms and purposes of his purchase, and the conveyance to him, and insists on his title thereby acquired.
The plaintiffs have failed to establish any extraneous circumstance to impeach the conveyance to the defendant. Indeed, the allegations of the bill are expressed in such general terms, that one must suppose that no relief could be expected on them; and that it was intended to put the relief on the ground, that the conveyance by a married woman of a slave, held by a trustee to her sole and separate use, is inoperative. The opinion of the Court, however, is to the contrary; and we hold that a feme covert entitled to a separate estate in personal property, unless there be some clause of restraint of her dominion, may convey it and do all other acts in respect to it in the same manner, as if she were a feme sole. That is the settled law of the Court of Equity in England, and was, long before the revolution; and it is therefore obligatory upon the Courts here, just as much as any other established rule of property, derived from our ancestors. To go no further back, it was unquestionable law in Lord Hardwicke's time. In Peacock v. Monk, 2 Ves., 191, he points out the difference in that respect between real estate, and personalty, or the profits of real estate, which in fact is personalty and goes to the executor; and he gives the reasons for the difference. As to personal property, he says, where the wife has a separate use in it, "she may dispose of it by an act in her lifetime or by will. She may do it by either, though nothing is said of the manner of disposing of it" — that is, in the settlement, or articles. That has never been denied in England from that day to this, though the grounds of the rule have been (114) often stated in subsequent cases, and the principle itself more distinctly explained. In Fettiplace v. Georges, 1 Ves. Jr. and 3 Bro. C. C., 8, it was, for example, stated in terms, that personal property, settled or agreed to be settled to the separate use of a married woman, may be disposed of by her as a feme sole to the full extent of her interest, although no particular form for doing so is prescribed in the instrument. The *86
principle of that rule is, that she takes separate property as hers exclusively, with all the rights and incidents of property; of which one, and a most important one, is the right of disposition. This principle has been applied to all cases since, in whatever form they may have arisen. Thus she may convey personalty in which she is entitled in a separate use in reversion, as well as a present interest. Sturgis v. Corp., 13 Ves., 190. She may sell or give even to her husband, since in respect of that property they are regarded as distinct persons, like other strangers; though the Court will scrutinize such dealings upon a natural suspicion of actual constraint on her. Powlet v. Delavet, 2 Ves., 663;Squire v. Dean, 4 Bro., C. C., 36. She may not only convey her separate property, but, without the consent of her husband or trustee, she may encumber it by mortgage, or charge it by contracting debts, as by giving a bond for so much money merely. Fettiplace v. Georges, andHalme v. Tenant, 1 Bro. C. C., 16, 2 Dickens, 560. Other instances need not be cited as evidence, that, in the last case, Lord Thurlow laid down the rule as correctly as he did explicitly, which he took fromPeacock v. Monk, supra, that a feme covert, acting in respect of her separate personal property, is competent to act in all respects as if she was a feme sole. He says, it was impossible to say the contrary. Now, beyond all controversy, the ground of that rule is not any capacity or power supposed to be imparted to a married woman by her husband (115) or by the instrument creating the separate use as a capacity or power, thereby creating and subsisting by itself apart from the property; but it arises out of the ownership of the property, and the right such absolute ownership imparts to the person, to do with it as she pleases. When equity adopted the principle, allowing that separate property might be vested in a married woman, which the law denied, it followed, as being inherent in the jus proprietatis, that there should be the jus disponendi. That is declared in all the cases to be the principle; and there is no contradiction among them. Even when a gift is made in general terms to the sole and separate use of a feme covert, and the instrument goes on to add, that she may dispose of it in some particular manner, as by deed or will, yet she may do so in another manner by reason of her general property, in which the power is merged. Elton v. Sheppard, 1 Bro. C. C., 532; Hales v. Margerum, 3 Ves., 299. Such being the nature of a feme covert's right to dispose of her separate property — conferred by equity, not created by the settlor — the doubt was, whether any restraint upon the right of alienation by the provisions of the deed was admissible. Upon principle, it, unquestionably, was not; because the common law denies such a restriction, and in respect to equitable estates the general rule is, that equity follows the law. But this anomaly was admitted by *87
the Court of Equity, in order the more effectually to protect the wife from the control or solicitations of her husband, and thereby make the separate property a more effectual provision. As was observed by Judge Gaston, in Dick v. Pitchford,
The plaintiffs, therefore, who are married women, are concluded by their deed, which in this Court is considered as passing all their estate; and, as no relief is sought except against the deed, the bill must be dismissed with costs.