OPINION.
1. Witness: Mar■malí eoT- % an us t dm in is* trator. First, as to Mrs. Peters’ testimony. She was the real defendant. Her interests alone were assailed by the suit'; for after his discharge in bankruptcy the husband was not. liable in person or property. She was testifying for herself, against a stranger, and no policy of law springing from the marital relations had any application.
At the time of her deposition the suit stood in the name of the administrator of the original plaintiff. She could not have testified under the statute as to transactions between herself and Doggett. But that did not preclude her from showing that she had leased to her husband, had put the plantation under his sole control, had claimed only stipulated rent, and that he cultivated for his own benefit and made his own contracts, without any authority from her to employ anybody, or to make any contracts binding her property.
1)C~ It is now too well settled to admit of further discussion2that, in equity, with regard to her separate estate, a wife may contract with her husband on fair terms. The unquestioned English doctrine, which, in so far as it is not controlled by statute, we have adopted in this State is, that she may deal with it- as a femme sole. At the time of the transactions in question there were restrictions upon her powers of alienation of real estate. They required the concurrence of her husband in a deed, and a privy examination as to her free will. But these restrictions had no application to annual renting, which need not be in writing at all. She might of her own will, have put a stranger in for a year. She certainly would not have been bound by his contracts for an overseer, even although that overseer should have improved her lands whilst working under a contract for wages. It would be unjust and unreasonable to preclude her from giving her husband the same advantage as a renter, without jeopardizing her estate. We can conceive no reason, nor principle, for denying her power to rent to her husband, or to prove by her own oath that she had done so. Regarding, then, either her capacity, or the subject matter, her testimony was admissible.
3. Effect m%u' 15, The fourth section of the act of Dec. 15th, 1875, provides that “the fact that a married woman permits her husband to have the custody, control and management of her separate property, shall not, of itself, be sufficient evidence that she has relinquished her title to said property ; but in such case, the presumption shall be that the husband is acting as the agent or trustee of the wife,” which presumption may be rebutted. The whole act is for the protection of the woman’s property against her husband’s creditors, and the evident meaning of this section is, that the husband shall not be considered to have acquired title by his wife’s permission, so as to make the property liable to execution ; in short to provide that the property shall remain her’s nevertheless.
If it were necessary, it would be important, too, to enquire whether the legislature had any other than the personal property in view. But the act can have no application to show that when the contract for services was made in 1874, Doggett might lawfully conceive himself contracting with Mrs. Peters through her agent. The act had not then been passed.
i. tkus■ ^,GETheir ¿powers. Nor does it follow because one is a trustee, or agent t° ^old and control property, he is authorized to bind |qie owner with contracts which may become liens upon it. Such powers must be express, or must be shown to arise within the scope of the agency. An overseer, for instance, is an agent to control a plantation, but he could not bind the real estate by contract, or even its crops, without more authority than arises from his agency.
■T). wife’s liability t>°anhd’Ss ■contracts, The case of Bank of America v. Banks, U. S. Rep., S. C., (11 Otto) vol. 101, p. 240, becomes then in point, case went up from Mississippi where a statute provided that a married woman might rent her lands ; and was a case like this, where she had rented to her husband. He made "contracts for supplies, &c., and it was sought, as here, to make her liable on the ground of her husband’s agency. 'The proof was that he was cultivating the plantation on his -own account under a verbal lease from her. The Mississippi statute had provided “that all contracts made by the husband and wife, or by either of them, to obtain supplies for the plantation of the wife, may be enforced, and satisfaction secured out of her separate estate.” That made a a much stronger case than this, where we have no statute. Yet it was held not to apply where the husband was cultivating the land on his own account. Mr. Justice Clifford, ■delivering the opinion, said: “Leased premises cultivated by the husband, in his own name, and for his own benefit, are not plantations of the wife,” in the sense of the statute, •“nor,” he adds, “is the contract in this case one made by fhe husband with the consent of the wife, which may also be satisfied out of her separate property.” The proof had failed to show such assent. It was also held to be matter of indifference that the creditor did not know that the husband was cultivating his wife’s property under a lease. • It would •only show that the creditor had acted improvidently and without due caution.
Taking noto prima facie evidence of settlement. In truth, the testimony of the wife in this case was superfluous. ' The transactions had been wholly between Doggett, •and the husband in his own name, and had been closed by taking the husband’s own note. This, prima facie, was a ¡settlement on the credit of the husband alone, without any •contemplation of the wife’s liability. After the issues made by the answers, the onus was on the complainant to .-show affirmatively, if it might be done at all, that the note was intended as a mere memorandum of amount, and that the wife was originally liable in her estate. That could not be inferred from the admission that the plantation was her ¡separate estate.
Her liability cannot be sustained on the grounds, that the labors of complainant enured to the betterment of the plantation. She did not contract for them. Nor did the complainant make'the betterments-upon any expectation of being remunerated, quantum meruit. He was working on wages to be paid by the husband, and if any one could have the right to a lien for improvements, it Avould be the husband himself, and he certainly has not. If he chose to put his hired employe to improving his wife’s plantation, it was matter of grace, which did not concern the employe at all. The latter could look only for wages, and to the person Avh© contracted to pay them. With regard to the personal property sold to the husband, there Avas nothing to prevent him from letting them go into the mass of the separate property of' the wife, after they had become his by purchase, if it were-even clear that he had done so, which is not.
The chancellor was doubtless satisfied, as we are, that the. original credit was given to the husband alone, without the Avife’s concurrence or agency. It is a hardship that he lost the debt by the husband’s bankruptcy, but it is not an unusual misfortune, and chancery will not aid by granting relief.' against others, not liable.
We find no error. Affirm.