51 Miss. 860 | Miss. | 1876
delivered the opinion of the court.
In 1870, Mrs. Jones sold and conveyed to Mrs. Johnson and Mrs. Shelby, land in Washington. The deed of conveyance shows that the price of the land was $40,000, of which $26,000 were paid in cash or its equivalent, and sundry notes executed by Mrs. Johnson and Mrs. Shelby for the remainder, which were payable to their own order, and by them indorsed and delivered to Mrs. Jones. The conveyance retains an express lien in the nature of a mortgage on the lands conveyed, as a security for the payment of the notes. Mrs. Johnson was a married woman at the time of the purchase and execution of the notes. . It does not appear from the bill whether Mrs. Shelby was or not. The bill avers nonpayment of the notes, and seeks to enforce the lien expressed in the deed by a sale of the land, in default of payment, and prays general relief. Mrs. Johnson and Mrs. Shelby demurred to the bill, and their demurrer was overruled on the 27th of July,
It is urged that after the appeal or writ of error granted by the clerk to the decree overruling the demurrer, no step could rightfully be taken in the cause in the chancery court. This is true if the appeal was not void, but if it was, it had no effect, and the complainants and court had a right to disregard it. The appeal, or writ of error was void, because the clerk cannot grant one from a decree overruling a demurrer. It must be granted by the court, and during the term. This is declared in the case of Nesbit et al. v. Rodewald et al., 43 Miss., 304, as the rule under art. 101, p. 555 Rev. Code of 1857, and as § 1256 of the Code of 1871 is substantially the same, the same rule applies. There was, therefore, no error in this respect. There was no error in the further progress of the cause for which the final decree should be disturbed. There is nothing in the suggestion of a “ discontinuance,” and the averments of the bill about the notes are sufficient. The only remaining question is as to the propriety of the decree overruling the demurrer as to the special cause assigned, “that there is no sufficient equity on the face of the bill to warrant the relief sought,” as to which counsel has earnestly argued the insufficiency of the bill, as being exhibited against married women, to enforce a contract by them for land bought on credit, partly. It is contended that such contracts are void, and incapable of confirmation or ratification by a married woman, and that she cannot be put to her election to affirm and fulfill, or disaffirm and rescind, but that the only way to do justice and vindicate the law is to treat such contract as absolutely void, and to annul it, restoring to the
"We have been urged by counsel to review the decision of this court bearing on this subject, and to relieve the subject from the embarrassment in which it is said the question is involved by a conflict between the cases. A careful examination of all the adjudications in this state on this subject convinces of the propriety of complying with this request, and leads to the announcement of the rules of law applicable to the purchase of land by married women, and the mutual and respective rights of parties in such cases before the courts of the country.
The question propounded by counsel is, Are the contracts of a married woman for the purchase of land on a credit void, or valid ? and what are the consequences of the one or the other of these qualities ? The note or other promise of a married woman to pay for land bought on credit is beyond her legal capacity, and, therefore, is null and void as an obligation to charge her separate property, held under our statutes. Her_ purchase on credit imposes no liability on her. But there is a wide difference between her capacity to take, and her capacity to promise and bind her estate. She has unlimited capacity to be a grantee of an estate, or the payee of a note, or obligee of a bond, or promisee of any contract. The statute confers this capacity upon her, and changes the common law in so far as it was different.
A deed conveying property to a married woman is valid and vests title in her, which she may assert. This was held as early as 1846, under the married woman’s law of 1889. Harmon v. James and wife, 7 S. & M., 111. A bond for title or other contract to convey to a married woman is valid, and she may claim and enforce performance as any other person. If she has money and pays it for land, she acquires title by a conveyance to her. If she pays part of the price and receives a deed reserving a lien
Neither under a conveyance of title to her, nor a contract to convey, where the vendor is able and willing to convey according to his obligation, is a married woman entitled to have refunded to her the cash payment she made. No principle of law or consideration of justice or policy sanctions any such right. In paying cash, she exercised an unquestionable right under the law. Having money, she could part with it as she pleased. She could give it away, and could not recover it back. Her disability, like other disabilities, is to be used as a shield and not as a sword. By it she may resist a demand, but not undo a legal and valid act she performed in paying “ her money ” for land. Where a deed has been made to her, and the land is sold under a decree for unpaid purchase money, she is entitled to any excess of the proceeds of the sale on payment of the decree. If the land shall not bring enough, she is not liable for the deficit. If the contract is executory, and she refuses to fulfill it, that is an abandonment of all claim under it, and she is not entitled to anything from it, unless the land be decreed to be sold and shall bring an excess over the sum due the vendor, in which case the excess would be hers.
The decree is affirmed.
The case of Magruder v. Snell was decided by two judges, the remaining judge not participating in it.