Mohr v. Senior & Son , 85 Ala. 114 ( 1887 )

OLOPTON, J.

Mrs. Mohr, being a married woman, was relieved of the disabilities of coverture under the provisions of section 2731 of the Code of 1876. Her petition, which alleges that she owns a statutory separate estate consisting of a stock of merchandise, is sufficient to give the chancellor jurisdiction, and the proceedings and decree appear to be in substantial conformity to the statute, and regular. — King v. Bolling, 75 Ala. 306; Meyer v. Sulzbacher, 76 Ala. 120. After the rendition of the decree, Mrs. Mohr purchased goods, wares and merchandise of appellees, during the lifetime of her husband; and after his death, made a voluntary conveyance of real estate to her son, Marcus Mohr. The bill is filed by appellees, and seeks to annul and set aside the conveyance, and to condemn the real estate to the payment of their claims. The appeal is taken from a decree of the chancellor overruling a demurrer to the bill.

The main question presented for decision is, whether a married woman, who has been relieved of the disabilities of coverture, under the statute, has capacity to contract a debt, in consideration of the purchase of goods, wares and merchandise, on which the creditor can maintain a bill, under section 3544 of Code of 1886, to subject to the payment thereof property fraudulently transferred or conveyed by the married woman; the answer to which depends on the question, whether such debt creates a personal obligation, on which a personal judgment can be rendered. In Parker v. Roswald, 78 Ala. 526, it was held, that a married woman, whose disabilities of coverture had been removed, could be sued at law on a debt

afterwards contracted in a purchase of merchandise, for the purpose of carrying on business in her own name as a sole trader, and a personal judgment rendered against her. As the statute' under consideration has been repealed, and therefore ceased to be of future practical importance, we should have contented ourselves with resting on the decision in Parker v. Roswald, had it not been assailed by- counsel, in an elaborate and exhaustive argument, as in conflict with, and a departure from the principles of previous decisions, in which the statute received interpretation.

By the uniform construction of the general statutes creating and regulating the separate estates of married women, they were regarded as enabling, but no^ enlarging the wife’s capacity to contract, even in reference to her separate estate, except in the mode and for the purposes prescribed and defined. While the statutes created a liability for articles of comfort and support of the household, and the tuition of the wife’s children, she could not otherwise make a contract, which would charge her estate, or on which a personal judgment could be rendered against her. Her capacity at common law to acquire property by purchase was not enlarged, and she had no power of disposition, except by the joint sale and conveyance of herself and husband, or by will. After the general statutes had been in force for many years, and their effect and operation been discovered, the legislature deemed it expedient to provide for the enlargement of the wife’s capacities in certain respects and for specific purposes. To this end, the act of February 10, 1875, amending the former act of April 15, 1873, was passed, conferring jurisdiction on the chancellors to remove the disabilities of coverture, with authority to act in term time or vacation. The amendatory act constitutes section 2731 of Code, 1876, and precisely defines the power as follows: “to relieve married women of the disabilities of coverture as to their statutory and other separate estates, so far as to invest them with the right to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as femes sole.” Like the general statutes, this statute has been uniformly construed as enabling in its purpose, and as authorizing the exercise only of the specified powers, and only in reference to statutory or other separate estates. It was not intended to vest a married woman with all the rights of a feme sole, nor to constitute her a free-dealer, nor to remove the trusteeship of the husband, or deprive him of the right to receive the rents, income and profits. She can make contracts touching and concerning property only; the power to contract generally being withheld. Neither does the statute operate to change the character of the estate — to convert a statutory into an equitable separate estate. On this uniform construction of the statute, counsel base their contention, that the case of Parker v. Roswald, supra, is inconsistent with the principles settled by the former decisions, and can not be sustained without ignoring all previous cases.

The first argument is, that it is apparent from the petition of Mrs. Mohr, that her purpose in procuring the removal of the disabilities of coverture was to engage in a mercantile business, and that the right to carry on such business, or to buy goods for that purpose, is tantamount to capacity to make general contracts, which the chancellor has no authority to confer. ■ The vice of the argument consists in the failure to regard the questions decided, the manner in which they arose, and in the misinterpretation and misapplication of some expressions contained in the opinions delivered in the cases of Ashford v. Watkins, 70 Ala. 156, and Falk v. Hecht, 75 Ala. 293, which are cited and mainly relied on.

In the first case, the mortgage in question rested on the validity of a decree of the chancellor, which declared Mrs. Ashford “to be a feme sole only so far as to invest her with the right to mortgage her said house and lots, in order to obtain an addition to her stock of goods and merchandise.” The decree was held invalid, and the reason assigned is, “the want of jurisdiction to change, temporarily and partially, the status of the appellant, as a married woman — to convert her into a feme sole for a specific purpose, and as to specific property — renders the decree void.” The principle underlying the decision is, that as a married woman has not capacity, either at common law, or under the statutes creating separate estates, to engage as a sole trader in merchandise, the chancellor had no jurisdiction to confer only this partial and specific right, and that all the powers prescribed by the statute must be conferred as an entirety. It was not intended to decide what would be the capacity of the wife in this respect, under a valid decree rendered on a sufficient and proper petition. Equally invalid would have been a decree removing her disabilities of coverture so as to invest her solely, separately and specifically with a right to sell, convey and mortgage property for any other specific purpose, for the reason, that the chancellor has no jurisdiction to convert a married women into a feme sole for any one of the statutory purposes singly.

In the last case cited, the decree was in the words of the statute, but was rendered on a petition the prayer of which was, that a decree be rendered declaring Mrs. Ealk “a free-dealer, relieving her of the disabilities of coverture, as to her said statutory separate estate, so far as to invest her with the power to mortgage the same, to enable her to invest her means in purchasing a stock of goods and groceries.” The decree, though following the statute, was held invalid on the ground, that “it passes beyond tbe petition, confers capacity, and works a change in the status of the wife, to which she did not express her assent, as the statute requires its expression, and which the chancellor could not impose upon her in invitumP The sole question was the power or jurisdiction of the chancellor to render such decree on such petition. What would have been the effect, had the petition conformed to the statute, may be inferred from the following observations in the opinion: “It is insisted, however, and such was the view of the court below, that the decree of the chancellor, relieving Mrs. Ealk of the 'disabilities of coverture, 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 feme sole, empowered her to execute the mortgage without the concurrence of her husband. Such, it may be admitted, is the effect and operation of the decree, if it is valid — if the chancellor had power and jurisdiction to render it. The power and jurisdiction, if it exists, must be derived from the statute.” Neither of those cases involved the question of the right of a married woman, who had been relieved of the disabilities of coverture by a valid decree under the statute, to contract a personal obligation in the. purchase of goods for the purpose of carrying on a mercantile business. The question arose more directly in Meyer v. Sulzbacher, supra, where a decree was upheld, which was rendered on a petition setting forth in what the separate estate consisted, and expressly stating, “that your petitioner wishes to employ her said separate estate in merchandizing, as her husband is experienced in that business, and can in this way best employ her said means,” notwithstanding the part of the decree which conferred power “to contract and be contracted with,” was held invalid. The wife’s purchase of a stock of merchandise from her husband was sustained.

It is further insisted that Parker v. Roswald is inconsistent with the interpretation of the statute, that it does not remove the trusteeship of the husband, nor deprive him of. his right to the rents, income and profits of his wife’s statutory separate estate, as held in Cook v. Meyer Bros., 73 Ala. 580. The principle on which that decision rests is, that the general statute, which constitutes the husband trustee, is not repealed by the later statute, expressly or by implication. But it is also said, “an enlargement of the capacity of the wife may render less valuable, and may result in impairing or defeating the right of the husband to the rents, income and profits of her statutory estate; but, while the statute remains, the trusteeship of the husband, and the consequent right to the rents, income and profits, are not inconsistent or repugnant to the capacity of the wife. Upon fair and just construction, the statute conferring on him the right, can be reconciled with the later statute, conferring enlarged capacity on the wife.” In Cohen v. Wollner, 72 Ala. 233, it was held, that the later statute authorized the wife, when relieved of the disabilities of coverture, to do the acts enumerated therein, as a feme sole, “without the concurrence, and against the consent of her husband.” And in Robinson v. Walker, 81 Ala. 404, it was held, that a married woman, relieved of the disabilities of coverture, “could exercise each of these powers severally, in her own discretion, just as if she were a feme sole.'''' The statute should not be construed to destroy or impair the rights of the husband and trustee, further than its words, when fairly and reasonably construed, clearly imply. The trusteeship of the husband is terminated, not by the statute itself, but by the co-operative effect of the execution of a power authorized, which is inconsistent with its continuation. His trusteeship continues until the wife exercises some right conferred. If she buys property, which thereby becomes her statutory separate estate, the husband becomes the trustee thereof; and if she sells and conveys property, his trusteeship, ipso facto, terminates, the same as when, under the general statute, the husband and wife united in a sale and conveyance of property. The operation of the later statute is, to lessen and restrict the right of the husband to manage and control the statutory separate estate of the wife, in so far that he can not defeat or prevent the execution of the specific powers conferred on her, when relieved of the disabilities of coverture under the statute.

The manifest purpose of the statute was to provide a well defined alteration of the status of a married woman, having a separate estate, by relieving her of the disabilities of coverture, and enlarging her capacity beyond the provisions of the general statute, to the extent prescribed, and for the purposes specified. “While it does not constitute a married woman a free-dealer, it clothes her, as far as the statute extends, with all the civil powers of a feme sole — Dreyfus v. Wolffe, 65 Ala. 496. She has therefore power to buy property, without limitation as to kind or character, other than real or personal, or restriction as to mode — a right to buy, take and hold, the property thus purchased as her separate estate. She may buy in any of the usual modes, for cash or on credit, or both; and if purchased on credit, in whole or in part, the debt contracted constitutes, under the statute, a personal obligation, the same as if she were a feme sole. She may purchase, without the husband’s concurrence, and against his dissent. The statute thus enlarges her capacity at common law to purchase property, and converts the purchase-money, which was otherwise a charge on the property merely, into a personal obligation. Such contracts of purchase touch aud concern property, and relate to the wife’s separate estate; and power to make such special contracts is not an equivalent of capacity to make contracts generally.

When, in addition to the power to. contract such debts, the statute provides that she may sue and be sued as a feme sole, the logical sequence is, that a personal judgment may be rendered, which, like judgments against parties sui juris, will be enforced against any property she may own liable to execution, without reference to the time when acquired. As there is nothing in the statute indicating a contrary purpose, a judgment against her, founded on an authorized contract, has the same force and effect as other personal judgments rendered in actions at law, and will be enforced in the same manner. — Caldwell v. Waters, 55 Amer. Dec., note, 608, where the authorities are cited. It follows, that the demands of complainants, having been incurred by Mrs. Mohr after being relieved of her disabilities of coverture, constitute a claim on which complainants may maintain the bill to subject property fraudulently transferred or conveyed, which would have been liable to execution on a personal judgment against her.

Affirmed.