| N.J. | Jun 15, 1887
The opinion of the court was delivered by
Anna Lawrence, the respondent, in her bill exhibited in the •court below, alleged that, one Emson being largely in her debt,
The vice-chancellor, on the hearing before him, allowed a deduction from the moneys in the hands of Warwick of the. sums paid by him to the complainant, but rejected the payments made by him for her husband, the ground of decision being that the separate estate of the wife could not be charged with the debts of the husband, even though the moneys be advanced upon an express promise in writing to pay out of a particular fund.
In avoidance of the force of the legal rule thus asserted, the counsel of the appellant insists that the evidence shows that the-moneys received by Warwick, as already stated, were not, in-point of fact, the moneys of Mrs. Lawrence, but belonged jointly to her and her husband; but it is obvious that if we assume the existence of such premises, only a half defence would be conceded, for if the wife owned a moiety of the fund, such portion would be protected against her assumptions of the-debts of her husband in the same manner that the whole fund.
But we think, looking somewhat deeper into the principle underlying the case, that the complainant is not entitled to recover any part of these moneys. Construing the facts most favorably to the complainant, and regarding the fund in question as her exclusive property, the transaction, in substance and effect, was an application by her of such moneys in satisfaction of the debts of her husband, and there is nothing in the law of this state that forbids a married woman from making such a disposition of her property. The married women’s act authorizes a feme covert to acquire and hold property of all kinds, and invests her completely with the jus disponendi. It is also declared that she shall have the right to bind herself by contract in the same manner and to the same extent as though she were unmarried, such latter power being restricted by the proviso that “nothing in this act contained shall enable such married woman to become an accommodation - endorser, guarantor or surety, nor shall she be liable on any promise to pay the debt, or answer for the default or liability of any other person.”
From this quotation, it is obvious that the agreement of the complainant touching the employment of her moneys in liquidation of the debts of her husband, so long as the same remained executory, could not have been enforced against her either at law or in equity. Such an agreement was a promise to pay the debt of another out of a particular fund, and the statute in express terms withholds from her the power to assume such an obligation. But there is another constituent of this case which appears to have been overlooked by the court below and by the counsel, and that is the fact that when this bill was filed the agreement of the complainant had been for a long time completely executed ; the moneys in question had been collected by Warwick, and by virtue of the agreement of the complainant had been applied in payment of the debts due from her and from her husband, and the question to be decided, therefore, is whether after such complete execution of her contract she can abrogate her consent and reclaim the moneys.
The result, therefore, is that, inasmuch as the moneys in suit were received by Warwick and applied by him with the consent of the complainant to the payment of the debts of her husband, they cannot be reclaimed by the complainant.
The decree must be reversed, and the bill dismissed, with costs in both courts.
It is proper to say that the suit may not be a precedent; that the bill in this case should not have been entertained. The controversy was a purely legal one, and should have been tried in a court of law.
Decree wnanimously reversed.