1 Shan. Cas. 239 | Tenn. | 1872
delivered the opinion of the court:
The purpose of the original, the amended and supplemental bills in tbis case is to enforce tbe collection of balance due on certain notes given by defendant, and ber then husband, Joshua Whitmore, of date 7th of January, 1860.
Three of these notes are for the sum, respectively, of $10,333, due January 1st, 1861, .1862, and 1863, with interest at the rate of ten per cent, from the time due until paid. kThe other is for $10,346, due one day after date, •.and was expected to he paid in a short time when given' — ■ in fact, was considered as part of the cash payment of $20,-000, and upwards, which was to be paid on receiving possession of tbe property purchased, and fox which all the notes were given. This property consisted of a large and valuable farm in Arkansas, with stores, stock, farming fixtures',
The ground on which the complainant goes, taking the original and supplemental bills together, is simply that the defendant had a separate estate, and had charged the same with the payment of these notes. To enforce this supposed liability of said separate estate is the first object of this.litigation. On the one hand, it is insisted that Mrs. Whitmore had the power to charge her separate estate, and has,-,done so; on the other, it is maintained she neither had the power, nor has agreed to. do so.
On the question of the powers of a feme covert holding a separate property, there has been, as is well known, a diversity of judicial opinion both in England and America. The rule established at present in the English courts of chancery is, that in respect to her separate estate, she is to bo regarded as a feme sole with all the powers that belong to that character, and that her note or bond, as such, will bind her separate property. See Leading Cases in Eq., vol. 1st, top p., 504, 519, 528; note to Hulme v. Tenant.
In enforcing remedies against such estate, however, no personal decree, even in England, is made against the married woman, but only against her estate. Erancis v. Wig-gen, 1 Wadd., 264; L. C. Eq., vol. 1st, 517.
It is not anywise certain that under the English cases, the corpus of separate property could be appropriated to the payment of her general engagements, certainly not /as to real estate, as far as we have examined the cases. The
We think the sound principle is given by Judge Green,
But without going into the general question farther, we may assume that a married woman acts, under the law in Tennessee, by virtue of the powers granted or retained in the instrument by which her separate estate is created.
We need not review all the cases in our reports by way of showing from their peculiar facts how they sustain the principles above announced. The case of Porter v. Baldwin, 7 Hum., 175, will illustrate the propositions announced in the latter part of the above statement of. the rules governing the question. The bill in that case was filed by Porter v. Baldwin and wife, to subject the separate estate of Mrs. Baldwin to the payment of the debt for rent of a house. The bill alleged that Baldwin, the' husband, was insolvent, and that Porter had rented to Mrs. Baldwin a house in Nashville, she having a separate estate, mostly in slaves, for four hundred dollars, with an agreement at the time that he should look to her for payment from her separate estate; that she had paid two hundred and fifty dollar’s of the sum, and had promised in writing, signed by her, to pay the balance of one hundred and fifty dollars, but had
The court then assuming (the deed of settlement not being before it) that the wife had a separate estate vested in her for her use, with no condition or restriction of her power over the same, that'it was settled on her for her maintenance. In this view of the question, the court held the wife might charge such estate for necessaries by express agreement, such as was charged (a home or house in which to live) certainly being such a necessary.
The court say it was given for the support of the married woman, and there might be no profits, or not enough for her support. If the estate cannot be applied, the very end for which it was given will be defeated. The court then gives the principle thus: “We think, therefore, that where there is no restriction on the settlement, and the profits are insufficient for her support, the wife may, under the direction of a court of chancery, dispose of part of the principal of the estate for her necessary support.” The decree was that the clerk should ascertain if there were any profits* of the estate to meet the debt; if not, what property could be applied to the payment of this debt with the least detriment. The first case and the last bring out the true principle in such cases, and embody the law as long settled in our state.
The cases in Tennessee on the question are [Marshall v. Stephens], 8 Hum., 159; [Litton v. Baldwin], Ibid., 209; [Cherry v. Clements], 10 Hum., 552; [Ware v. Sharp], 1 Swan, 489; [Woodrum v. Kirkpatrick], 2 Swan, 224; [Simmons v. Kincaid, 5 Sneed, 453; [Hoyle v. Smith], 1 Head, 90; [Hughes v. Peters], 1 Cold., 67, with others not necessary to be cited. There may be, as we have said, in seme of our cases, an apparent want of conformity to' the above rules in a first view, but when carefully scanned, it will be seen they all go on the principles announced substantially, unless Young v. Young, 7 Cold., 461, be an exception, which we need not discuss at present.
We then turn to the instrument creating the separate estate of Mrs. Whitmore, to ascertain what are her powers OA^er the same, and how far she is released from the disabilities of the coverture.
After reciting the fact that a marriage was contemplated, and the possession of property by the parties to the contract, it is agreed, that “the parties, respectively, shall not, and Avill not intermeddle Avith, or have any right, title or interest either in laiv or equity in or to any of the property, real or personal, of the other party, nor to any part of the rents, issues, profits', hires, etc., arising therefrom, but the same shall remain and be to the said party, to whom the same now rightfully belongs, or to such uses as the party now seized or entitled thereto shall think fit and appoint- In
This being tjie terms of the instrument, and its fair construction, we hold that while she could charge the rents, profits, and hires, by virtue of her absolute control over
Applying these principles, it is clear that the notes sought to be enforced, simply of themselves, would not be a charge on the corpus of the separate estate, and that they contain no such contract on their face, in execution of the power, as would certainly evince a purpose to create a charge on said property.
However, we hold, that from the proof in. the case, there was no purpose or contract or intention that the three last notes should be a charge on the separate estate of Mrs. Whitmore. The fact that a. deed of trust was taken on the entire estate to secure the payment of this balance of $31,000, $20,000 being provided for otherwise as the cash payment, would go far to rebut the idea that any other security was looked to for the payment of these notes. The answer expressly denies that their payment was agreed to be a charge on her separate estate, and the proof tends more strongly to sustain the answer than to overturn it. On well settled principles, it must be taken that the complainant fails, to make out his case, in favor of the proposition
But the question recurs as to the first note of $10,346, part of the cash payment. It is admitted in the answer that for this note her separate estate was to be bound. After denying with emphasis that her separate property was to be bound for the last three notes, respondent says she denies Williams sold said property, created said debt, or extended said credit on the faith, or with the expectation that she or her separate estate would be bound or liable for the payment of the same, or any portion thereof except the $10,-000 paid in cash, and the $10,346, which, at the same time, she had arranged to pay, was considered as cash and has since been paid. The same admission is repeated in the answer. Now, on the principles we have laid down, to the extent of her power under the marriage settlement, and so far as she has complied with the mode pointed out by which she could do so, she has charged her separate estate with this debt. That is, she has contracted that said estate shall be so charged. This is all that is required to fix the liability of such estate, where the power to charge exists, such contiact to be proven as in other cases of contract, by appropriate evidence. It is not the creation of an incumbrance on the estate, or lien on it, which, under our law, could only be created by an instrument regularly executed for the purpose, so far as real property is concerned, when sought to be shown by express contract. Gilliam v. Esselman et al., 5 Sneed, 88. It is the exercise of the power given in- the instrument in reference to the particular estate, which may be proven, as we have said, like any other contract, and when so proven, is enforced by a court of chancery against the estate, by the sequestration of the profits, as the first source, or by appropriation of money derived from the estate, if in the hands of the trustee, and in a proper case, by sale of such portion of the corpus of the
■ Has the note been paid as claimed? It appears by satisfactory proof, that Ferguson, who died in 1865, a son-in-law of defendant, acted as agent of Mrs. Whitmore in the collection of her money, and remitting the same to Williams in discharge of the notes given by her. The facts, as far as we are furnished them, are that up to- April, 1860, upwards of $5,000 had been remitted to Williams, which was credited on this nqjte for the cash payment. The next remittance was January 8th, 1861, after the first note- fell due. This was credited by Williams on this last note. There were other remittances during the year 1861, which, with the amount paid in 1860, and credited on the note in controversy, make about the sum of $18,000, enough it will be seen, to have paid the balance on this note, and left a credit of over $6,000 on the note due January 1st, 1861.
The question then remains as to' whether the note is executed in pursuance of the power, so as to bind the corpus of the property. On this question there is much nice learning in our books. The rule is thus laid down by Chancellor Kent, vol. 4th, 330, 334. While it is best that a reference should be made to the power, when an act is done in pursuance of it, “yet the power may be executed without reciting it, or even' referring to it, provided the act shows that the donee had in view the subject of the power.” A will may be good in execution of a power, in a case wheie there is no reference to it, if it be a case in which the will would be inoperative without the aid of the powei; and the intention to execute the power is clear and manifest. The intention is the great leading object of inquiry. 4 Kent, 336 [Gee v. Groves]; 2 Head, 242 and 243, and authorities there cited. Taking the admission that this note was intended to be a charge on the separate estate or its proceeds, and this the contract of the parties, that it is witnessed by two witnesses, signed by her own hand, the intention is clear to execute the power, and thus bind the corpus of the separate estate by the act. It is a strict pursuance of the power, can only carry out the intention of the parties by being in pursuance of the power, and must be held to have been executed for this purpose. A simple note, even signed by the party and witnessed, would not of itself be sufficient, but where the intention to execute the power is made clear, it may do so.
The result is, as to all the conveyances of real estate in Shelby county, they being purely voluntary to her children, this note or the balance due on it, must be held a charge, first, on the rents and profits, and if not sufficient in a reasonable time to discharge this debt, when sequestered for this purpose by the chancery court, then so much of the corpus of the property may be directed to be sold as
The next question is, whether the defendant, Botts, is liable for $13,000, difference between the amount he bid for the Arkansas land, sold by the trustee under the deed of trust,-and what it sold for at a subsequent sale made by the same trustee some months after. The facts necessary to be stated are, that the trustee advertised the land for sale under the deed of trust, and offered it for sale in 1865, when it was knocked off to Botts, as the highest and best bidder, at $28,000. Botts being disappointed in raising the money, probably by failure of another party, refused to take the land, or accept the deed tendered by the trustee. Thereupon, some months after, the trustee advertised the land again, in accordance with the requirements of deed of trust, and sold it to one Edginton, for $15,000. It is sought now to charge Botts with this difference. It is proper to say, as to the question of the statute of frauds,. argued by counsel, that the bill alleges a sale, a memorandum of the bid, with name of .the purchaser, made by the auctioneer at the time. This is not denied by the answer, but is by fair construction of the answer impliedly admitted, for on this subject he substantially says that he admits the sale charged, and that he was the highest and best bidder, and the land was struck off to him at $28,000. He also admits the second sale, as charged, but denies his liability for the difference in price between the two sales. He then goes on to give his reasons for non-compliance with the contract, and puts in his defenses against the liability charged. There was failure, as he says, on part of the
Assuming this to be the state of the case, we come to the question so earnestly insisted on, of the liability of Botts for this difference. W e have had no case of sale by private parties at auction of rea.1 estate in this state, where the question has been presented, nor have we been pointed by counsel to any case in point. We have found one case, Tullman et al. vs. Franklin, 14 New York, 584, where, on failure of the purchaser to complete his purchase, the property was resold, and he charged with the difference, but in that, such a condition was in the terms of the sale, and, therefore, a pai*t of the contract.
We conclude, after careful reflection on the question, that the rule sought to be maintained by complainants, is not the proper one, and that the difference between the price at the two sales is not the correct measure of the defendant’s liability, assuming as we do, that a valid contract existed. Botts is certainly liable for damages for failure to coipply with his contract. But complainant, or the trustee, still held the legal title to the land, and sold, not as Botts’ land, and under the deed of trust, thus treating it as their own, and accepting a disaffirmance or refusal of Botts as a breach of his contract, and now assume a broken contract as a basis of his liability to damages. On sound principle, we think Botts is liable for damages, but the measure
"We believe this substantially disposes of all the questions presented in the case.
A decree will be entered in accordance with this opinion. Mrs. Whitmore will pay two-thirds of the costs of the court below, and Botts one-third; complainant will pay one-half the costs of this court, and Mrs. Whitmore the balance.
The case will be remanded for proper proceedings in furtherance [pursuance] of this decree.