46 Ky. 293 | Ky. Ct. App. | 1847
delivered the opinion of the Court.
How far the engagements of a feme covert for the payment of money not expressly charging or referring to her separate estate, should be regarded in equity as an appointment or charge upon such estate, has not, as we believe, been expressly decided in this Court.
The modern doctrine of the British Chancery seems to be, that as an incident to the power of separate enjoyment as recognised in equity, the feme has the power of charging her separate estate, (3 Maddock’s Chy. Rep.934; Ibid, 201,) but that without a charge on her part, either express or implied, it cannot be reached. In Hulme vs Tenant, (1 Bro. C. C. 20,) it was held that when a wife joins with her husband in a security, it is an implied execution of her power to charge her separate estate. And in Stewart and wife, vs Kerkerwell, &c., (3 Maddock’s Chy. Rep. 387-8,) the Vice Chancellor said, “this Court will consider a security executed by her as an apappointment pro tanto,” &c., and jthe separate estate, was subjected to the payment of a bill of exchange drawn by the feme covert.
Assuming this to be the true equitable doctrine, it follows that the execution of a promissory note by Mrs. Jarman, as the surety of her son, was impliedly so far an execution of her power over her separate estate in the slaves held by her trustee for her sole and separate use, and should be considered as an appointment pro tanto. For it cannot be admitted that her declaration, “that she
But if the doctrine of the cases above referred to be not received as authoritative to the full extent, still we , , , . . . are inclined to the opinion, that as a judgment has been rendered on the note against both the parties, and anéxecuti°n thereon has been returned “no property found,” the case comes under our statutes authorizing the subjec- , -it. tion of equitable interests to the satisfaction of judgments upon such a return being made on the execution. The COyerture of Mrs. Jarman not having been relied on at # ° law, either to prevent or reverse the judgment against her, it cannot be regarded in this proceeding as being void. -And no reason being shown for not having relied upon COverture at law, and no equity being in fact made . . ? , , ° „ out against the judgment, we think the Court of Equity i]as same p0Wer of enforcing it against the equitable interest of either defendant, as if the coverture did not exist.
Wherefore, the decree is affirmed.