Wilson v. Jones , 1877 Md. LEXIS 52 ( 1877 )

Bartol, C. J.,

delivered the opinion of the Court.

This bill of complaint was filed by tbe appellants for the purpose of charging the separate estate of the appellee Elizabeth, who is a married woman, with the payment of a debt alleged to be due from her to the appellants. The appellees demurred to the bill, and this appeal is from the decree of the Circuit Court sustaining the demurrer and dismissing the bill.

The bill of complaint alleges that Elizabeth C. Jones, a married woman, was during the years 1872, 1873 and 1874, seized or possessed in her own right, or through the intervention of her trustee, George F. Jones, of several lots of ground in .Baltimore City, and being so seized and possessed of said ground, as and for lier sole and separate estate with all the rights, and powers in reference to the same, of a feme sole, erected' and built thereon, during those years, a large number of houses adapted to the uses of stores, dwellings and the like, and that she did thereby greatly enhance the value and amount of her said separate estate.

That the said Elizabeth with' the view of so improving her said separate estate, in order to enable her to erect her said houses, or many of them, during those years purr chased of the complainants lumber and other materials, which she used in said houses or many of them, which lumber and other materials with the prices for which the same were sold, are set forth in a bill of particulars filed and exhibited as .a part of the bill of complaint. It is further alleged that after building several of the houses, the said Elizabeth has sold the same to other persons.who now own and hold them; but that she still holds and owns twenty, if not more of the houses and lots of ground appurtenant thereto that are described or referred to in a certain paper writing exhibited with the bill of complaint.

It is further alleged that the said Elizabeth is now indebted to the complainants in the sum or balance of $2182.06 together with interest thereon ; for which it is alleged her said separate estate is liable ; but inasmuch as she is a feme covert their said claim can be enforced only in a Court of Chancery ; and the bill prays that the same may be declared to be a charge upon the separate estate, and that so much thereof as may be required for that purpose, may be subjected to the payment of complainants’ claim and interest thereon.

It is not alleged in the bill that it was any part of the contract, upon which the lumber and materials were furnished, that the same should be a charge, or lien upon the property, or that there was any such purpose or intention on the part of Mrs. Jones.

The claim, as it is made by the bill of complaint, is a simple contract debt due from Mrs.- Jones to the appellants, and the only equitable ground upon which the specific lien is claimed, is that the lumber, &c. for which the debt was contracted, was used in the construction of the houses, and that thereby the separate estate was enhanced in value.

In the present state of the law in Maryland, it is very clear that this claim cannot be supported. The law has been settled by the case of Koontz vs. Nabb, 16 Md., 549. In that case Mrs. Nabb a married woman having a separate estate, purchased a horse to be used upon the farm and gave her promissory note to secure the purchase money; the bill was filed to make her separate estate responsible for its payment; but the bill was dismissed, this Court said “ we have carefully examined the decisions in England and in this country, and have reached the conclusion, that a married woman having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced presents upon its face some evidence of the intent to charge the estate, or there is evidence aliunde tending to prove such intent.” This was there declared to be the well established doctrine in the chancery jurisprudence of England, for many years before our separation from that country, which remained undisturbed until the decision of Hulme vs. Tenants, 1 Brown’s Ch. Cases, 16, in 1778.

Since that time, the doctrine has undergone much change in that country, and many modern decisions there, some of which are cited in Koontz vs. Nabb, and others referred to in 2 Story’s Eq. J., secs, 1400,. 1401 (notes,) will show that the tendency of the decisions in England has been to hold that the general engagements of a married woman will bind her separate estate, without any express contract to that effect, or any expression of intention to charge the estate. Without referring to these cases more particularly, we consider the doctrine in this State is too well settled to be changed, except by the Legislature ; that in order to charge the debts contracted by a married woman upon her separate estate, as a lien- in equity, it is necessary that it should affirmatively appear her contract was made with direct reference to her separate estate, and that it was her intention to charge the same.

(Decided 8th March, 1877.)

We refer to Conn vs. Conn, 1 Md. Ch. Dec., 212, cited and approved by this Court in Koontz vs. Nabb ; see also 2 Story’s Eq. J., secs. 1398, 1401.

The bill of complaint in this casp does not aver that there was any contract by Mrs. Jones to bind her separate estate, or any intention on her part to create or charge a specific lien thereon for the payment of the appellants’ claim.

It states no sufficient case entitling the appellants to relief in equity, and the demurrer therefore was properly sustained.

The Code, Art. 51, secured to the appellants a remedy, by which they might have established a lien upon the property, but they have not chosen to pursue that remedy. The provisions of the lien law do not, in our opinion, furnish any reasons in support of this bill of complaint, the inference from the appellants’ omission to claim their lien under the Code, would rather he that it was not the intention of the parties that any specific lien should he created upon the property, but that the appellants trusted entirely to the personal engagement of Mrs. Jones.

The decree of the Circuit Court will be affirmed.

Decree affirmed.