Gayle's Adm'r v. Marshall , 70 Ala. 522 ( 1881 )

BRICKELL, C. J.

These, are cross appeals from a decree in chancery, rendered on a bill filed by Anna M. Gayle, as administratrix de bonis non of the estate of Mary L. Gayle, asserting a lien on lands for the payment of the. purchase-money. The lands were sold by Mrs. Gayle and her husband, and a conveyance executed to Marshall, the purchaser. The larger part of the purchase-money was paid in cash, at the time of the conveyance ; and for the remainder, Marshall, at the request of the husband, made his two promissory notes, of fifteen hundred dollars each, payable to Milhous & Shields, to whom Mrs. Gayle was indebted. These notes were delivered to Milhous & Shields, and accepted by them in payment of the debt of Mrs. Gayle. The lands were the statutory separate estate of Mrs. Gayle; and the question of chief importance the cases present is, whether her estate was liable for the debt, to the payment of which the notes were applied. If her statutory separate estate was liable for the debt, the disputed question of fact, whether she assented to the application of the notes to the payment of the debt, becomes 'immaterial as it is probably in any aspect of the case.

Tlie husband, the trustee of the estate, caused the notes to be made payable to Milhous & Shields, and applied them to the payment of the debt. As trustee, it was not only within the scope of his authority, but it was a duty, to pay and satisfy all liabilities resting upon the estate. It is not essential that the wife should assent to, and concur in the application of either the rents, profits, or income, or the corpus of the statutory separate estate, to the discharge of such liabilities; nor will her dissent, however openly and frequently expressed, lessen -the duty and authority of the husband.—Castleman v. Jeffries, 60 Ala. 380; Lee v. Tannebaum, 62 Ala. 501.

It is shown satisfactorily, that the debt to Milhous & Shields was contracted for articles of comfort and support of the household, suitable to the degree and condition in life of the family, and applied to their uses. This, of itself, will not fasten a liability on the wife’s statutory separate estate, though she may be the active agent in making the contract. Concurring with it, there must exist the common-law responsibility of the husband for necessaries supplied to the wife. At common law, a married woman was incapable of • contracting. The incapacity was general and absolute; not arising from a want of discretion imputed to her, as it is imputed to infants, but because she had entered into an indissoluble connection, by which she was placed under the power and protection of the husband, and was deprived of the administration of property. Not even for necessaries could she bind herself. The observation of Lord Brougham in Murray v. Barlee, 3 Myl. & Keene, 209, has been more than once quoted in this court: “ That at' law a femme covert can not in any way be sued, even for necessaries, is certain. Bind herself or her lmsband, by specialty, she can not; and although living with him, and not allowed necessaries, or absent from him, whether on . an insufficient or an unpaid allowance, she may so far bind him, that those who furnish her with articles of subsistence may sue him; yet, even in respect of them, she herself is free from all suit. This is her position of disability, dr immunity at law: and this is now clearly settled. Her separate existence is not contemplated: it is merged by the coverture in that of the husband.” The disability or immunity was not peculiar to courts of law. Courts’ of equity recognized it, unless there was property given or settled to the separate use of the wife, in reference to which she could contract, or which, as an incident of ownership, she could bind.

The statutes enlarge the capacity of married women to take and hold property, without enlarging, or, rather, avoiding the enlargement of their capacity to contract. The obvious purpose and policy is to disable the husband, not to enable the wife— depriving him of the rights which at common law would devolve on him, in and to the property and rights of property of the wife, had at the time of the marriage, or during its continuance accruing to her. The statutory separate estate of the wife is not charged with liability for articles of comfort and support of the household, because the wife contracts for them : her capacity to contract for them is not greater, or other, than was her capacity to contract for necessaries at common law.. The estate is charged with a liability for the contract, because of its particular consideration, and because it was made by either husband or wife, under facts and circumstances which, at common law, would have charged the husband, personally and exclusively, for its payment. It is this responsibility of the husband, not created by the statute, but derived from and dependent on the common law, to which the statute refers, making it an indispensable element of the liability of the statutory separate estate.—Durden v. Mo Williams, 31 Ala. 438 ; Ravisies v. Stoddart, 32 Ala. 599; Eskridge v. Ditmars, 51 Ala. 245; O'Connor v. Chamberlain, 57 Ala. 431; Lee v. Campbell, 61 Ala. 12.

The duty of the husband, at common law, was to maintain the wife. From this duty springs the responsibility to which the statute refers. The husband was at common law, and is yet, presumed to assexxt to, and authorize the wife, on his credit, to purchase necessaries for the use of the family; and her contracts, of which these are tlxe consideration, bind him. From sxxch contracts he may dissent, or xnay even forbid them; yet, if the :fact is that he has ixot supplied the wants and necessities of the household — if he has neglected the duty of maintenance — a stranger, furnishing the wife, can hold him liable. Hughes v. Chadwick, 6 Ala. 651; Zeigler v. David, 23 Ala. 127; Hearson v. Darrington, 32 Ala. 227; Durden v. McWilliams, 31 Ala. 438; Eskridge v. Ditmars, 51 Ala. 245; O'Connor v. Chamberlain, 59 Ala. 438. But, tliough the wife xnay be living with, or separately fx’om the husband, if, on her own credit, and to the express exclusion of the. credit- of the husband, she obtains necessax-ies, the husband is xiot liable. Pearson v. Darrington, supra; O'Connor v. Chamberlain, supra.

The point of contention is, whether this coxitract was not 'made solely oxi the credit of the wife, — to the express exclusion of the credit of the husband. There is, and can be, no doubt that it was not expected the husband would pay the debt, and that credit was extended because of the liability it was supposed woxxld attach to the statutox-y separate estate of the wife. The husband was known to be insolvent, and unable to maintain the family suitably to their degree and condition in life, axxd to the degree of the wife’s statutory separate estate. It is a matter of fact, whether, in a particular case, credit be given to the wife alone — whether she was dealt with on her own account solely, to the exclusion of the credit of the husband ; or whether, though she alone was active in making the contract, the circumstances show that the husband is bound, because of his assent to, or because of his ratification of the contract. To the statute, full effect can not be given — it can not be made to subserve the beneficial purpose of securing maintenance to the wife and family — unless, in all cases, there^ is careful inquiry, whether there was an intention, on the part of those supplying the necessities of the family, to exclude the credit of the husband entirely — not merely an absence of dealing on his credit exclusively, as the dealing must have been at common law, to have imparted validity to the contract. It must often be true, that the husband is without credit, unable to provide for the family according to their station in life, and the degree of the wife’ fortune. Those supplying necessaries may be unwilling to extend credit to him alone, because of his known inability to pay, and may extend it to the wife, looking to her statutory estate for payment. It is the liability of the statutory estate for which the parties are contracting; and whenever it is shown that the dealing was with the knowledge and consent of the husband, it does not fall within this exception to the liability of the husband at common law, for necessaries supplied the wife and family.

The precise nature,'character, and extent of the exception to the common-law liability of the husband, for goods supplied to the wife on her own credit, will be best ascertained from an examination of the cases in which it has been invoked. The English cases generally referred to in the text-books, are Metcalfe v. Shaw, 3 Camp. 22; Bentley v. Griffin, 5 Taunton, 556 ; Petty v. Anderson, 2 Car. & Payne, 38; West v. Wheeler, 2 Carr. & Kir. 714; Freestone v. Butcher, 9 Carr. & Payne, 643. In the first of these cases, wearing apparel was supplied to a married woman, in quantities unsuitable to her husband’s fortune, and to his degree in life, and without his knowledge, for which credit was given the wife alone, and her promissory note taken. Lord Ellenborough held that the husband was not liable, “ on this plain ground, that the goods were not supplied on his credit, and the plaintiff looked to the wife only for payment.” In Bentley v. Griffin, goods were sold to the wife, who was debited with them on the boobs of the plaintiff. She had said to one of the plaintiffs, in the presence of her husband, that “ her husband never paid her bills, she always paid her own;” and when some of the goods were sent to her house, she had directed a servant to put them away, that her husband might not see them. The general liability of the husband was repelled by the circumstances showing that credit was given to the wife alone. In Petty v. Anderson, husband and wife were living together, and in the wife’s name carried on business, making purchases in her name. The husband, consenting to the dealings of the wife, and sharing in the profits, was held liable, though the bills of parcels were headed in the name of the wife only. Best, C. J., said: “ Can any thing repel the inference of the husband’s assent, when every meal he eats, and the bed he sleeps upon every night, are furnished by the profits of the business.” In West v. Wheeler, the wife had borrowed money; and, after her death, the husband had promised to repay it, when convenient to him, hut stating that he had not heen privy to the loa/n. The court ruled, that the evidence must go to the jury, who would determine whether the husband authorized the wife to borrow the money, or, having knowledge of the loan, had assented to it. . In Freestone v. Butcher, Lord Abinoer said: “ If it appears that the wife had a separate estate, and the trading is done wdtli, and credit given to her, on the faith of that separate estate, and not to the husband; if the wife wras dealing in fact, not as the •agent of the husband, but in her own right, and in reference to her separate estate, and the credit was given to her, and not to the husband, and the party intended to charge her, and not the husband, — then the husband is not liable for the contracts so made.” The wife had a separate estate, which she could charge by her contracts without the concurrence of the husband.

There are cases in this country, in which this question has been considered. In Shelton v. Pendleton, 18 Conn. 417, it was held that the liability of the husband, for the contracts of •the wife, w^as by reason of his assent to, or approval of them; or, because the lawr of marriage imposes on him the duty of supplying her with necessaries; but, when credit is given the wife alone, all presumption of a contract, binding the husband, was repelled. The facts of the case were, that the wife had employed solicitors to prosecute a suit for divorce, in opposition to the wishes and interests of the husband. In Moore v. Forgartie, 2 Hill (S. C.), 335, the husband had directed the wife not to contract debts, and had furnished her money; without his knowledge, she made purchases of goods, giving her own note for them; and it wTas held, the husband was not liable. In Day v. Burnham, 36 Verm. 39, the wife made purchases of necessaries from a merchant, requesting him not to call on her husband for payment, and, from time to time, she made payments on the account; finally, she became sick, and the husband, being called on for payment, promised that he would settle the account, though he knew nothing about it. The promise was held a ratification of the wife’s contract, rendering the husband liable. In our own case of Pearson v. Harrington, supra, the wife was living separate from the husband, on an insufficient allowance, and, without the knowledge of the husband, made purchases of necessaries, on her own credit, to which he never assented.

In all the cases, in which the husband is relieved from liability for necessaries, because purchased by the wife on her own, and to the exclusion of his credit, there will be found the absence of knowledge, on his part, of the contract when it was made, or of subsequent assent to, and ratification of it; or, that the wife had a separate estate, in reference to which the contract was made, and which she had capacity to charge. The facts of this case are, that the debt was contracted with the full knowledge and assent of the husband, many of the purchases being made on orders drawn by him. From the dealings with Milhous & Shields, the family were supplied, without dissent on his part; and “ the law will not presume so much ill ” of him, as that he did not consent to be bound for the food and raiment which were supplied wife and children, and for which he would doubtless have paid, promptly and cheerfully, if his ability‘had been equal to his will. It was not in expectation that he would or could pay, that credit was given. But the facts and circumstances create a common-law responsibility upon him to make payment, and this is the element of the liability of the statutory separate estate. True, the accounts were all kept in the name of, and against Mrs. Gayle, as the debtor. That is a circumstance tending to show credit was extended to her only. It is no more than a circumstance, capable of explanation by all the circumstances.—Sanford v. Howard, 29 Ala. 684. It is from these combined the real nature of the transaction must be ascertained. These indicate, very clearly, that husband and wife, and Milhous & Shields, intended the making of a contract of the precise character which the statute declares a charge on the wife’s statutory separate estate. The notes of Marshall, for the purchase-money of the lands, were properly applied in payment of the debt, a charge upon the statutory separate estate.

The result is, on the appeal by Marshall, the • decree of the chancellor is reversed, and a decree here rendered, dismissing the original bill, at the costs of the appellee as administratrix de bonis non, in this court, and in the court below. The cross-bill of Marshall must be dismissed at his costs. On the appeal by Anna M. Gayle, as administratrix, the decree must be affirmed.