Mallett v. Parham

52 Miss. 921 | Miss. | 1876

PeytoN, J.

delivered the opinion of the court.

The defendants in error obtained a judgment in the circuit court of Copiah county, against the plaintiffs in error, for the sum of $850, upon a contract of said husband and wife for supplies for the plantation of the wife.

The errors assigned are as follows :

I. The court erred in rendering judgment against J. B. Mallett upon a cause of action against the wife alone.

2. The court erred in rendering a personal judgment against, the said Irene, instead of a judgment against her to be levied of her separate estate.

. At common law the wife is incapable of making any binding contract. But art. 25, Code, 1857, p. 336, changes the common law in this respect, and enables the wife, when she has a separate estate, to contract for supplies for her plantation. This liberty of contracting pertains merely to the thing contracted about, and does not extend to her person. In other words, though a wife may, by contract, bind her property, she cannot in any way, either at law or in equity, bind her person. It is only in consequence of the existence of her separate estate that tbe statute authorizes her to make the contract, and that separate estate alone is bound by the contract. The enforcement of the contract is in the nature of a. proceeding in rem. No general judgment can be rendered against her so as to reach in execution any other property.

The pleadings show that the supplies were furnished for the-plantation of the wife, and that she alone was liable for the-payment of the debt out of her separate estate ; and that the husband was joined in the suit with the wife for conformity, and that no judgment for recovery of the debt could legally and properly be rendered against him, nor could a judgment-be rendered against the wife so as to bind her person.

In this case there was a general personal judgment against-both husband and wife, instead o,f a judgment to be satisfied out. of her separate property. Section 1780 of the Code of 1871.

These are errors for which the judgment must be reversed, and this court, proceeding to render such judgment as the court below ought to have rendered, doth order and adjudge-that the said Parham & Blunt have and recover of the said Irene M. Mallett the sum of $850, wdtli 5 per cent, interest thereon, and costs of suit, to be levied of the separate estate of the said Irene M. Mallett, by execution, etc.