23 Miss. 236 | Miss. | 1851
delivered the opinion of the court.
This was a bill filed on the equity side of the circuit court for the county of La Fayette county, to subject the income and proceeds of the estate of a married woman ; held, under the provisions of the statute of the 15th of February, 1839, to the payment of a debt incurred by her husband, in the purchase of articles necessary for the support and preservation of such her separate estate.
By the 4th section of the statute of 1846, (Hutch. Dig. 498,) it is provided, that all contracts for the purchase of supplies for the plantation and slaves, or the slaves alone, owned by any married woman, made by the husband and wife, or either of them, shall be obligatory on both, and may be enforced against the income and proceeds of the separate estate of such married woman.
In the case at bar, the liability of the income and proceeds of the estate of Mrs. Otey, to the satisfaction of the appellant’s demand, is not contested. But it is insisted that his remedy is not by bill in equity, but by action at law. This question is presented by the demurrer of the appellees, which was sustained in the court below. It is the only question in the case.
Generally whatever pertains to the separate estate of a married woman, its liability for. her debts, her capacity to dispose of the same, are the subjects of original equity jurisdiction.
The object of the appellant, by this proceeding, was to obtain satisfaction of his asserted demand out of the income
. It is said, that as the statute which'subjects the income and proceeds of the estate of a married woman, held under the act of February, 1839, to the payment of certain debts contracted by herself and husband, jointly, or by either of them, gives the creditor a remedy by action at law, the remedy by bill in equity does not exist.
It is obvious that if the provision of the 5th section of the act of 1846, which in certain cases gives a remedy by action at law, had not been adopted, the remedy for the rights secured by the 4th section of the same statute would have been alone in equity. The terms in which the right to sue at law is given, do not by the most remote implication confine the creditor to such action alone. Indeed, the action at law is limited to cases in which “ courts of common law would have jurisdiction of the subject-matter in controversy between unmarried persons; ” and thus by implication recognises the jurisdiction of the courts of equity in reference to the subject.
Upon the whole, we conclude that it was the design of the legislature to supply a concurrent remedy, by action at law, where such action was appropriate, to be resorted to by the party when he should deem it the best.
We therefore reverse the decree, and remand the case for further proceedings.
