Whitworth v. Carter

43 Miss. 61 | Miss. | 1870

Simrall, J.:

This was a suit brought in the circuit court of Monroe county, by Davis G. Carter, administrator, etc., against the plaintiff in error, and Mary R. Whitworth, founded on a writing obligatory. The defendants pleaded payment, and sundry special pleas, the plea of payment was withdrawn. Carter, administrator, demurred to the other pleas, which was sustained, and defendants ‘declining to plead further, judgment final by nil dioit was rendered against all the defendants, except Mary R. Whitworth, as to whom the suit was dismissed.

The defendants in the court below, plaintiffs here, assign for error:

1. The decision of the circuit court sustaining the demurrer to their pleas.

2. The second plea is, that the consideration of the writing obligatory, was the purchase by Mary E. Whitworth, of a negro woman, sold by the plaintiff as administrator, etc., and that said Mary was at that time a feme covert, wife of John Whitworth.

3. The third plea set up the same facts, with the further averment that said negro Avoman was not necessary for family supplies, nor to keep up her plantation, nor to protect her separate property.

4. The fourth plea was the same as the two preceding, with the additional allegation, that said Mary E. Whitworth, a feme covert, made the writing as principal, and the other defendants as sureties, and was notfor family supplies, nor for the purchase of anything necessary to keep up a plantation of a feme covert, nor necessary to protect the separate property of a feme.covert.

5. That the writing obligatory was given for the negro woman, purchased by the said Mary, she being a feme covert.

6. Sixth plea, same as the others, with the fact that the slave was emancipated in 1865.

7. Seventh plea, same as last, with the allegation that the proceedings and order of sale by the probate court, were illegal, and no title passed by the sale. Shortly after the sale the war ensued; courts were closed, records moved, and no opportunity to examine and discover defect of title until after May 1st, 1865; that the slave was emancipated, and therefore impossible for purchaser to offer to restore her.

8. Eighth plea, that the writing obligatory was given for the negro, who was emancipated by public acts and authority in 1865.

We have been furnished with very elaborate arguments by the counsel on both sides, on the subject of the power and limitations of married women to make contracts. At common law the contracts of a feme covert, except perhaps under a special custom of London, were void.

In Elliot v. Piersol, 1 Peters R., 338, the supreme court states the doctrine in these words: “ By the principles of the common law, a married woman can do no act to bind herself. She is said to be sub poiestate viri, subject to his will and control. Her acts are not like those of infants' and some other disabled persons, voidable only, but are in general, absolutely null and void, ab iniiio."

Lord Kenyon declared in Clayton v. Adams, 6 T. R., 604: “ If any one proposition in the law be more clear than another, it is that an action cannot be brought against a feme covert, a court of law cannot get at her property if she have any.”

Davis v. Foy, 7 S. & M., 67, is to the same effect. It is quite olear that the writing obligatory is void as to Mrs. Whitworth, unless there be something in our statute law, to impart to it validity. In Davis v. Foy, the court in reaffirming former adjudications, construing the act of 1839, adds: “This act has not the effect to extend the wife’s power of contracting or of binding herself or her property — its effect is rather to take away all power of subjecting her separate estate to her contracts, except in the particular mode specified.”

Foster v. Doyle et ux., 7 S. & M., 73-75, originating under the same act, bill in equity was brought against husband and wife, to subject her property to the debts contracted for “ articles of plantation and household purposes.” Sharkey O. •!., says that this statute of 1839, was intended to limit the rule, “ that a feme covert having separate estate, acts with regard to it as a feme sole.”

If property is settled upon her by will, marriage settlement, or other conveyances, “ she is a feme sole only so far as the instrument conferring the separate estate constitutes her a feme sole-, and she is restricted to the particular mode pointed out by the instrument. Doty v. Mitchell, 9 S. & M., 447; David v. Fisk, 9 S. & M., 151; Berry v. Bland, 7 S. & M., 83.

In 1849, the husband with the wife’s assent, submitted to arbitration a controversy, about her separate property — this was not binding on her. Fort et al. v. Battle, 13 S. & M., 136. Under the act of 1846, the wife is not liable for buildings put up on her lands. Selph v. Howland, 23 Miss. Rep., 266. The language of the decisions from 1839 to this time, adjudicating under the acts of 1839, the amendments and enlargements of 1846, and of 1847, are uniform, that these are enabling statutes, that the feme covert is still subject to her common law disabilities, except as to the class and subjects of contracts therein enumerated. That if she be the owner of separate property, then she can make certain ¿numerated contracts, but in every case where she or her estate is sought to be charged, the primary enquiry is, was this, a liability which she was authorized by the statute to incur ? If not, then she is remitted to her condition at common law, that of absolute disability.

It remains to enquire whether the statute of 1857 confers on Mrs. Whitworth power to make this purchase, and execute the writing obligatory. It is quite plain that it is not embraced in art. 25, Code, 336. The 25th article confers on the wife authority to purchase “ property, real or personal,” with her own money, which she may have had at the time of her marriage, or which may have accrued to her after-wards, as revenues of her estate, or otherwise. And she may take conveyance in her own name,” etc., etc. This would seem to be a limitation on the 23d article, which recognizes, that “ property of whatever kind may accrue to a married woman, by will, descent, distribution, deed of conveyance, os otherwise.” It might be claimed, that inasmuch as purchase is one of the modes by which property may accrue to a married woman, like any other purchaser, she may engage t-o pay the price at a future day. There might be plausibility in this view — but for the after-restriction — that she may purchase with money. To hold that she can obligate herself to pay for property bought on credit, by a sealed instrument, or otherwise, where the suit is at law, on the chose in action, would overturn the beneficent policy of the law, and break down the barriers with which the corpus of her estate is hedged around. Whilst she can provide for the maintenance, comfort, and education of herself and family and for the improvement of her property, she is not permitted to embark in the hazards of trade or speculations. For certain enumerated objects, she may spend her entire income, and make liable the property itself. Yet, if she proposes to enlarge her fortune, and add to her property, she can only do so by paying the ready money.

The counsel for the plaintiffs in error, urge the doctrine, "that the obligation of the,surety is accessary to the obligation of some other person, and it is of the essence of the sureties’ liability, that there should be a valid obligation of the principal.” This is correct, as a general rule, and where it may have efficacy in its application. If the vice be in the subject matter of the contract itself — as if mala in se or mala prohibita, such as gaming, and such as are denounced by morals and public policy — which the courts utterly refuse to recognize and enforce, the surety may show that these were never of force, at all, as valid parts. There is no objection to the subject matter of this contract. The sale was such, as by law, could be made. The married woman could take the title and ownership. There was nothing, either at the common law, or under our statutes, that would prevent the ownership of a chattel or land, vesting in a feme covert. The fact that she was under coverture, which is a disability, personal to herself, does not relieve the other obligors. James v. Fisk, 9 S. & M., 144. Sessions and wife v. Bacon, 23 Miss. Rep., 272; Russ v. Wingate, 30 Miss. Rep., 445, were cases where the obligations were held to be of no effect at law, as to the feme covert, but binding on the husband. In one or more of these cases, whilst it was asserted that no recovery could be had at law against the wife ; yet, she had power, under the statute, to mortgage her separate property to secure her husband’s debt.

On a contract of guaranty, generally, the guarantor incurs no responsibility, unless the principal is bound. But as respects such undertakings, for a married woman, or for an infant, or other persons under personal disability, there is no doubt the guarantor is liable, though contracting in the character of surety. Chitt. Cont., 499; Meaggs v. Ames, 4 Benj., 470. In White v. Cayler, 6 T. R., 176, it was taken for granted, rather than attempted to be provpd, that a guarantor or surety would be liable on his contract. Such, also, is the doctrine of the civil law. “ If the principal obligation is annulled, on account of some personal exception, such as minority, it would not, in the least, invalidate the sureties’ obligation to the creditor; for it was only to make good the obligation of the minor, in case he should be relieved of it, on account of age, that the creditor took the additional security of a surety. Domat b. 3, tit. 4, § v, art. ii; 1 Ev. Pothier Obligations, 237.

It has been so often decided that the emancipation of the slaves (as one of the results of the late war), does not relieve the purchaser from the payment of the price, and is not a breach of the covenant of warranty of title, that it is no longer open to debate in this court. It is, also, equally well settled, by a series of adjudications, that the purchaser cannot defend against the purchase money, on the ground of a failure or defect of title, though the title be attempted to be passed by judicial sales by executors and administrators, which have failed to do so, for want of conformity to law; unless within a reasonable time, there has been a return, or an offer, to return the thing bought. The excuse set up in the pleas, to relieve the purchaser from this duty, are not sufficient; there was not the exercise of that promptness and diligence required bylaw. Josselyn v. Caughlin, 27 Miss., 852; ib. v. ib., 30 Miss. R., 502; ib. v. ib., 34 Miss. R., 308; Bohannan v. Madison, 31 Miss. R., 348; Ware v. Houghton, 41 Miss. R., 381.

In this case, the sale was made on or about 31st March, 1860 ; suit was brought to May term, 1861; at the same time a plea of payment was filed. On the 17th of November, 1866, the special pleas were put in. The purchaser had opportunity, for. a year or more after the sale, to examine the records, for defects in the probate proceedings, and to rescind the sale, for want of title. It is too late; after the slave was emancipated, in 1865, as averred by the plea (although access to the records was cut off during the war), and when it was impossible to rescind the contract, and put the parties in statu quo, to set up this after-discovered defect in the judicial proceedings, as vitiating the title; especially when it is not averred that the party is threatened with suit or eviction. ’ In this case, the possession was continued, without threat or molestation, for five years, as may be inferred.

We think the demurrer to the pleas was properly sustained.

Let the judgment be Affirmed.