Farrand v. Beshoar , 9 Colo. 291 ( 1886 )

Helm, J.

All the facts connected with this suit existed during the year 18J1. Hence we are obliged to consider the questions presented with reference to the status and rights of plaintiff in error, as a feme covert, previous to the territorial acts of 1872 and 1874 on the subject of married women. The suit was commenced early in the year 1877, and before the present Code of Procedure became a law. We are therefore also to consider this case under the practice as it existed prior to the adoption of that instrument.

The record discloses a consideration for the note offered in evidence. Regarding it, so far as the obligation of defendant’s husband is represented therein, as simply a promise to pay the antecedent debt of another, we find sufficient consideration to support the promise. There was the new loan of $100 to her son, and the extension of three months on her husband’s indebtedness. We do not think that, under the circumstances disclosed in this case, had the law then been as it now is, she could escape a personal judgment for the amount of the note. But being a married woman . at the time she executed the• promise, although living separate and apart from her husband, the note itself was not a binding contract at law. The statute then enacted with reference to married women left the common law unchanged in this respect. Against her objection, a legal action could not be maintained upon the note, personal judgment could not be obtained against her, and no execution could issue to be levied upon her property generally.

The decree cannot be sustained upon the ground that_ Beshoar, as a creditor of defendant’s husband, was the beneficiary of a trust in the realty described ^herein. The property, upon the separation from her husband, was conveyed to her by an absolute deed. No agreement' to pay the husband’s debts is referred to in this deed, nor is. there any pretense that the conditions of the trust were in any other manner reduced to writing. Adams v. Adams, 79 Ill. 517; Learned v. Tritch, 6 Colo. 433.

No actual fraud in connection with the conveyance is alleged or proven.

The answer filed in another cause, which was received in evidence against defendant, cannot be said to avoid the foregoing objection taken under the statute of frauds. Sec. 1515, Gen. St.. This answer was not signed by defendant, nor was her name attached thereto by another as agent; and had defendant’s name been signed to the instrument by her attorney, there is nothing to show that any such authority in the premises, as the statute requires, existed in writing. The trust theory must therefore be abandoned.

But plaintiff’s counsel invoke the equitable doctrine that where a married woman, having a separate estate, contracts a debt on her own account, she will be held in equity to have created a charge upon such estate, even though the intention to do so is not expressly stated in the contract. 1 Bish. Mar. Worn. §§ 862, 863, and cases cited; 3 Pom. Eq. Jur. §§ 1124, 1126, and cases cited. It will be noted, however, that this accejited doctrine limits the liability of her separate estate to cases where the debt is contracted for her own benefit, or for the benefit of the estate itself; and, while there is considerable conflict in the decisions on the subject, we are of opinion that the decided weight of authority is in favor of the proposition that, if she is merely a surety, other persons, as in this case, receiving the entire benefit of the transaction, the liability of her separate estate does not attach unless the contract itself includes an express provision on the subject. 3 Pom. Eq. Jur. § 1126, supra, and cases cited.

Applying these principles to the case at bar, we find that the averments of the complaint do not state the cause of action to which counsel appeal, nor does the evidence relied on support any such cause of action. The promissory note upon which plaintiff sues contains no reference whatever to defendant’s separate estate, nor does it embody any expression which could possibly be construed as evincing an intention to charge her estate. The whole theory of the case, as shown by the complaint, the trial, and the findings and decree of the court, was that a trust existed in the estate in plaintiff’s favor.

The decree will be reversed, and the cause remanded, with directions that the district court dismiss the complaint.

Reversed.