Todd v. Lee
16 Wis. 480
Wis.
1863
Check Treatment

By the Court,

Cole, J.

When this case- was before us on^a former appeal, the chief justice went into, a'very thorough,examination of the general [question, as '.to ho^E&r the separate property of a married woman was consideredun equity liable *483for any contracts, debts and other charges created by her during coverture. The conclusion reached, was that for many purposes-courts-of equity treated a feme covert, in respect to her separate.estate, as a feme sole, and charged such estate with the payment of her debts, contracted: for her benefit upon its faith and credit. This is the well established doctrine of the authorities, although no little confusion exists among them as to-the-nature and extent of the liability-of the separate estate of a married woman for her debts,- and the grounds upon which this liability arises.- But without. going over that discussion again,.it-is sufficient now to;say, that after an exam-u nation of the facts- of this -case, we were led to the conclusion that Mrs. Lee purchased the-goods and. contracted the debt mentioned.in the pleadings and .evidence, upon the fáith and' credit of her -separate estate; that this. debt was beneficial to her, and enabled her-to prosecute the business- in which she was-engaged:; .-and-therefore that the property which she held to her sole and separate use, was chargeable with its payment. It cannot be necessary, therefore, to go .into any discussion of the questions of - law or -fact from .which these conclusions were derived, and it will-notfoe -attempted. It only remains .to determine whether the circuit court rightfully, applied those principles in the judgment from-which this appeal is -taken., That judgment, by its terms,-.was -made payable out of the real and personal property of which Mrs. Lee was, at - the commenpement of the suitj seized and .possessed as -her sole and .separate property, or to her sole and separate use, under and by virtue of the laws of the state of Wisconsin, and under and.by virtue of the sufferance and permission of her husband.- It-is contended-that this judgment is .erroneous, because. it-is madó payable out of the separate property,owned by Mrs. Lee at the commencement of the suit,- instead. of .being payable out-of the property.which she owned when the .debt was contracted.. The ground, it is said, upon which courts of equity proceed in enforcing, the debt of a married woman against her separate. *484estate, is, that the debt haring been contracted upon the faith of such estate, it becomes a charge upon it in the nature of a specific lien. Hence, it is claimed, the debt must be enforced against the particular estate upon which the credit was given, and none other. But we do not think it is correct to say that Mrs. Lee, in this case, contracted to pay the debt out of a particular estate, so as to make a lien upon that property. There was no mortgage given, nor any other instrument executed which was equivalent to constituting a specific lien. She contracted the debt upon the credit of her separate estate, and for her benefit. It becomes payable out of that estate then, and the court lays hold of such property as she possessed when, the suit was commenced, and applies it in satisfaction of the debt. But in doing this, it does not proceed upon the idea that it is enforcing a specific lien against any particular estate. It is true, this is in substance, the language of those cases which say that the intention of the married woman to create a charge on a separate estate, must be treated as an appointment or disposition of it pro tanto. But this reasoning was deemed artificial and and unsatisfactory in the former opinion. And, as already intimated, it was then, held that the court proceeds upon the theory that when a married woman contracts a debt upon the credit of her separate estate, such estate becomes chargeable with its payment, to the same extent that the estate ofj.a feme sole was chargeable at common law. And as the creditors had no means at law of compelling payment of those debts, a court of equity took upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property and subjecting it to their payment. In this case Mrs. Lee contracted several debts upon the credit of the separate estate. If she created specific liens in each case, then it is obvious the debts are to be discharged according to priority. But this is contrary to the doctrine already advanced and laid down in these cases, that the creditors should be paid pari passu; that the maxim of equality among the creditors should *485apply. Mrs. Lee’s separate estate consisted of real and personal property, which she could undoubtedly sell and dispose of, free from incumbrances created by these debts. Some portion of that estate consisted of profits arising from her- trade and millinery business. Her stock in trade was constantly changing, and she could create no specific charge or lien upon it, which would not materially interfere with her power to sell and dispose of it. And as a matter of fact, she created no lien upon her estate by any written instrument, and we see no valid or sufficient reason for saying that the particular property which she owned when the debt was contracted can alone, be applied to its payment. There are dicta to be found, to the effect that the creditor must look only to the property which the married woman owns when the debt is contracted; but we have met with no case where that precise question has been decided. And in reason and principle we cannot see why such a doctrine should prevail in a case like the present. Mrs. Lee contracted these debts on the faith of her separate estate, whatever that was, and such estate, owned by her when the suit was commenced, we think should be applied to its payment.

The judgment of the circuit court is therefore affirmed.