| Ala. | Jan 15, 1855
— The bill is filed by the appellee to subject the separate estate of Mrs. Ozley, a married lady, to the payment of certain notes executed by Thomas Cost and herself to him. It charges that, at the time of the execution of the notes by her, she was the wife of Gilbert Ozley, and had a separate estate in three negro slaves, and other personal property, which it is said will more fully appear by a deed of gift exhibited with the bill and made part thereof. This deed purports to be a deed of gift from Z. Gross, but is signed “ Z. Ozley”, and the clerk who certifies to the acknowledgment says, in his certificate, that Z. Cross appeared before him and acknowledged the same to be his deed.
If the deed had been executed by Cross, these is no doubt that it would have created a separate estate in Mrs. Ozley, the property being limited “to her use only”, which would exclude her husband as effectually as if the term “ separate ” had been employed. The intention clearly appears to create a separate estate ; and where this can be gathered from the instrument, the particular language in which it is couched becomes unimportant.—See Jenkins v. McConico, at the present term, and cases there cited.
It is supposed, however, by the counsel for the appellants, that because this deed is not properly executed, the court could not regard Mrs. Ozley as possessed of a separate
It is a sufficient answer to this objection, that there is no issue made by the pleadings as to the existence of a separate estate: its existence is an admitted fact in the case; and, under these circumstances, we will not stop to inquire into the regularity of the deed under which the defendant (fiar-thena) holds the property. We must assume that, although the wrong name is signed to the instrument, it is in equity the deed of the proper person — that is, that there exists a mistake in its execution which the court would rectify, and the concessions of the parties are predicated upon the equitable maxim that the Chancery Court may consider that as done which ought to have been done, and which the court upon a proper application could order to be done. Even laying the deed out of view, as being informally executed, it is competent to limit a separate estate by a parol gift; and as the true inquiry, in all such cases, is whether the wife has a separate estate which may be charged with the demand sought to be enforced against it, and not so much as to the manner of its creation, we should not be disposed to turn the complainant out of court, if he had properly averred the fact as to the existence of a separate estate, although he may have mistaken the evidence of the existence of that fact. We repeat, however, that the existence of a separate estate is an admitted fact in the case, and whether it is created by the deed, as the complainant alleges, or exists otherwise, is a matter of no consequence. The defendants admit that the deed does create such estate, and it is not for the court to refuse a decree because it cannot understand how it is the deed creates it. There are, doubtless, such facts connected with it, as in equity would make it available for this purpose.
But it is said, it is neither averred nor proved that Mrs. Ozley, in signing the notes, intended to create a charge upon her separate estate. We think the law is now well established in England, (and we have followed the English doctrine upon this subject,) that where a married woman gives her written obligation for the payment of money, it shall be intended that
The doctrine, which for some time obtained in the English chancery courts, that the general engagements of a married woman in writing operate and are valid only as appointments made of her separate estate (see 2 Atk. 379; 2 Ves. 142; 3 Madd. 94; ib. 389), has been justly exploded; and it appears now to be the settled doctrine of those courts, that a feme covert, as to her separate estate, can enter into contracts in the same manner as a, feme sole, and that her contracts, whether written or verbal, are equally binding, and do not operate merely upon the principle of appointments. Such was the doctrine asserted by Lord Chancellor Brougham, in the elaborate case of Murray v. Barlee, 3 My. & Keene 223; see, also, Owens v. Dickinson, 1 Cr. & Phil. 53; 1 Lead. Cases in Eq. (Hare & Wallace’s notes) 397, et seq.
We entertain no doubt as to the correctness of the chancellor’s decree upon this point.
In relation to the objection that Thomas Cost is not made a party to the bill, it is only necessary to observe, that the objection was not raised in any way in the court below, and that it is well settled such defect must be taken advantage of by plea or demurrer, and if it is not thus brought to the knowledge of the court below, this court will not reverse for want of a proper party, if he be not indispensable to the rendition of a proper decree. In this case, Cost might very properly have been made a party, but he is not an indispensable party. A decree can as well bo made without, as with him before the court. The case of Robert Conn v. James Conn, 1 Maryland Ch. Rep. 212, 219, if it be conceded to be correct, does not apply to the case before us; for, in this case,
There is no error in the decree, and it is consequently affirmed.