46 Mo. 114 | Mo. | 1870
delivered the opinion of the court.
The competency of a married woman to bind her separate property, by giving notes and other obligations, can no longer be regarded as an open question in this State, however unsettled the doctrine may be elsewhere. As to her separate property, she js here regarded as a femme sole, and, as to that, competent to make contracts which a court of equity will enforce, not against her personally, but against her separate estate; and not only so, the contract itself, as, for instance, a promissory note,.,is evidence of her intention to charge such property. It is sufficient prima facie evidence to establish the existence of such intention, without the introduction of other proofs. This court so decided in Coats v. Robinson, 10 Mo. 757, Judge Napton delivering the opinion of a majority of the court.
The whole subject was again reviewed at great length by Judge Leonard, and with his usual ability, in Whitesides v. Cannon, 23 Mo. 457, where the doctrine of the prior decision was re-stated and re-affirmed in its whole extent. The same questions were again brought up in Claflin v. Van Wagoner, 32 Mo. 252, and the court treated them as fully settled by the previous adjudications.
We are not disposed to go behind these decisions for the purpose of ascertaining what may be the state of the law on this subject in other States and countries. There are doubtless conflicting decisions and opposing authorities. Here, however, the decisions have been uniform and consistent, and establish not only a clear and intelligible rule, but one that is, on the whole, satisfactory. Its disturbance at this time would be both inexpedient and unwise.
In the case at bar it is claimed, however, that the petition fails to show that the estate sought to be subjected is in fact the
It thus stands admitted by the pleadings, not only that the property was originally conveyed to Mrs. Ambs for her sole and separate use, but also that it has ever since been so held and treated, notwithstanding her subsequent intermarriage with the other defendant. It thus seen that, so far as the mere words of a conveyance are competent to express and describe a separate estate, such an estate was created by the conveyance to Mrs. Ambs, and that the subsequent use and treatment of the property has conformed to the character of the estate sought to be created by the deed. As to what words are appropriate and efficient to describe a separate estate, see 2 Sto. Eq. Jur., § 1382.
It is objected, nevertheless, that the petition fails to show that, in the deed to Mrs. Ambs, trustees intervened to take the legal title. It is therefore argued that no separate estate was created by that instrument. The argument assumes that trustees were necessary for that purpose. The assumption is not well founded. A separate estate may be created without the intervention of trustees. Judge Story says that it has been settled for a hundred years that in equity the intervention of trustees in the creation of a separate estate in the ftmme is unnecessary, although the employment of trustees in the creation of such estates is conceded to be the better method of doing it. He then proceeds to say that “ whenever real or personal property is given or devised, or settled on a woman, either before or after marriage, for her separate and exclusive use, without the intervention of trustees, the intention of the parties shall be effectuated in equity, and the wife’s interest protected against the marital rights of the husband.” (M., § 1380.) Hill states the doctrines thus: “Real estate limited to the separate use of a married woman is more
In the case before us, as already remarked, the pleadings not only admit that Mrs. Ambs originally acquired the property to her separate use, but also that she has ever since enjoyed that use, and controlled and enjoyed the property as her own, notwithstanding her subsequent intermarriage with the other defendant. This excludes the idea of the existence of any arrangement between him and his wife inconsistent with her separate interest in the property. A distinction, however, is sought to be drawn between an estate acquired by gift, bequest, or devise, and an estate acquired by purchase. The ease does not show how Mrs. Ambs acquired this property, whether by deed of gift or upon a pecuniary consideration moving from herself. It simply shows .that it was conveyed to her, but upon what consideration or inducement does not appear. But I do not find that the distinction referred to has been recognized in the books. In Clancy’s treatise on the rights of husband and wife, it is said that although the decided cases furnish no instance of the acquisition of separate estates except by gift qr bequest, still the principle involved would doubtless “equally apply to every form by which such a limitation can be made”' — that is, to every form or method of limitation to the separate use of the femme. (Clancy on Husb.
Formerly it was supposed that the intervention of trustees was necessary in the creation of a separate estate in the wife, but that notion has now become obsolete. Then a distinction was sought to be drawn between gifts and bequests to married and unmarried women as regards the creation of a separate estate, but that distinction has been repudiated by the courts. It does not appear that any distinction has ever before been attempted to be drawn between the different methods of creating the separate estate, whether by bequest, deed of gift, or deed of purchase.
In the case under consideration there was not only the creation of a separate estate, so far as the employment of apt technical terms in the deed is concerned, but it appears by the pleadings that there has been an uninterrupted use and enjoyment of the separate estate thus sought to be created, ever since the execution of the deed, no objection on the part of the after-taken husband appearing. His acquiescence and approval rather should be inferred from the facts alleged.
It was decided in Coughlin v. Ryan, 43 Mo. 99, that where the wife held a leasehold at the time of her marriage, and her husband permitted her to hold and enjoy the property and to collect and apply the rents and profits to her own use, she paying the taxes, the accumulation of such rents and profits, upon her decease, would descend to her heirs as her separate estate, in opposition to the marital rights of her husband. So, it was decided in Vermont that where personal property was held and treated by the husband and wife as the separate estate -of the latter, her
We deduce from the authorities the following conclusions: 1. That a femme, sole may acquire by purchase as well as by gift, a separate estate, and that, too, through a deed directly to herself, without the intervention of trustees ; and that such separate estate will be protected in equity against the marital rights of an after-taken husband who shall acquiesce in the arrangement and allow his wife to manage 'and control the property ak her own, notwithstanding the marriage. 2. That equity will alsoq| subject such estate to the payment of her debts and obligations. Where she joins in the execution of anote, it will be inferred that she intended thereby to charge her separate property, without further proof, in the first instance, of such intention.' Equity protects the separate'interests of-a married woman against the claims of her husband and his creditors, but not against the just claims of the creditors of the married woman herself. On the other hand, as already suggested, it will subject such property to the payment of her own debts and vindicate the rights of those with whom she contracts.
The further point is made that it does not sufficiently appear that the plaintiff has exhausted his legal remedies against the husband, who is a' joint maker of the note which is sought to be made good out of his wife’s separate- estate. The petitioner avers that he has no property whatever, and that fact is admitted by the demurrer. It is not at once perceived what legal redress a creditor can have against a debtor who is destitute of all means of payment. However that may be, this is not a case where the
As a result of the foregoing views, the judgment will be reversed and the cause remanded.