Dreyfus v. Wolffe , 65 Ala. 496 ( 1880 )

STONE, J.

— The note sued on in this case was given as for a balance due from Mrs. Dreyfus to appellee, for money paid by the latter at the request of the former. Throughout the entire transaction, Mrs. Dreyfus was a married woman, but, by a decree of the Chancery Court, had been “ relieved of the disabilities of coverture, as to her statutory and other separate estates, so far as to invest her with the right to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as a femme sole.” — Code of 1876, § 2731. She pleaded her coverture, in defense of the suit; and the question is presented, did the statute, and the chancellor’s decree thereon, enable her to make the note, and thereby fasten a personal liability on herself.

It can not be suceesfully gainsaid, that, as far as the statute extends, Mrs. Dreyfus is clothed with all the civil powers of a femme sole, and her coverture opposes no obstacle to the assertion of rights and liabilities, whether made by or against her. The rulings of this court, from the very commencement, have been, that our statutes securing to married women their separate estates, do not constitute them femmes sole, or free-dealers. They are under all the disabilities of coverture, except to the extent the statutes confer powers on them. The clauses conferring on them powers, we have construed as enabling ; we have sometimes said, narrowly enabling.— Gilbert v. Dupree, 63 Ala. 331; Coleman v. Smith, 55 Ala. 378; Lee v. Tannenbaum, 62 Ala. 501, which collects the authorities; Shulman, Goetter & Weil v. Fitzpatrick, 62 Ala. 571.

The act of February 10th, 1875 (Code of 1876, § 2731), was evidently conceived in the same spirit — that of enabling the wife to do what, theretofore, she had no power to do. It is entirely enabling in its purpose. It does not, in general terms, constitute her a free-dealer, or confer on her all the powers of a femme sole. It specifies the extent to which such powers are conferred. This it does ex industria, for it is twice repeated in the statute. It empowers her to “ buy, sell, hold, convey and mortgage.” It does not confer the power to make general contracts. Fxpressum facit, cessare taciturn. If the purpose had been to confer on' her all the powers of a femme sole, it might have been done in fewer words, and the words, declaring the extent to which the wife was relieved of the disabilities of coverture, would have been omitted, as inappropriate and unnecessary. The words ‘ so far as,’ in the fourth line of the section, and ‘ for the purposes aforesaid ’ in the eighth and ninth lines, emphasize what we have said. We do not think that either the statute or the decree authorized her, by the execution of the note declared on, to fasten a personal liability on herself. — Holt v. Agnew, at the present term.

Beversed and remanded.