Foxworth v. Magee ( 1870 )

SlMRALL, J.:

A bill in chancery was exhibited by Eoxworth, administrator, etc., of Jas. A. Jordan, deceased, against Elisha, Mary, and Edward Magee, to foreclose a mortgage. After demurrer to the bill had been overruled, Mary Magee (assisted, for conformity, by her husband, Elisha), plead in bar, of the foreclosure (as to part of the lands set out in the plea), that she was a married woman at the date of the execution of the mortgage and note, and owner as of her own separate property of part of the lands. The chancellor held the plea to be insufficient in law, and upon the complainants declining to answer over, dismissed the bill as to her and her separate property.

The mortgage was executed by Elisha Magee and Mary, his wife, conditioned that the wife would pay the noie at its maturity, which-was subscribed by Edward Magee & Co. (of which firm, the said Mary was a member), and by Elisha Magee.

After a very careful review of the cases, in Whitworth et al. v. Carter, administrator, MS. opinion, it was deduced, as the principle settled by them, that a married woman could make only such contracts as were authorized by the statutes-The precise question adjudged in that case, was, that she imposed no legal liability on herself or her separate property, by a writing obligatory, giye'n for property bought on a credit, whilst the other obligors were or might be bound. The same principle has been declared in subsequent cases. Although Mrs. Mary Magee, could set up her coverture in bar of a recovery at law upon the note ; and indeed, was incapable of becoming a member of a commercial firm, and of incurring the responsibilities of a merchant and trader; she, nevertheless, had the power to mortgage her separate property, as security for her husband’s debt. In Sessions and wife v. Bacon et al., 23 Miss., 283, which arose under the act of 1839, it was held that a mortgage of the.-wife’s property was good, because she had the power under the statute to “ convey,” and if she could make an absolute transfer, she qould make a conditional one. In Russ v. Wingate, 30 Miss., 445, the husband and wife joined in the note and mortgage; the note was admitted to be void as to the wife, but was valid as to the husband. The court add, ‘‘If the notes were obligatory upon the husband, it was incompetent for the wife to unite with him in a mortgage of her separate property to secure them; this case came up under the act of 1846. In James v. Fisk, 9 S. & M., the indebtedness of the husband was renewed by notes of the husband and wife, and a mortgage on her property, which was held to be binding. Mary Magee was not bound on this note, signed by the firm of which she was a member. All the cases- hold, that the responsibility of the wife is created, not by signing the notes, but by the power which she has to convey her property, conferred by the statute, or the deed of settlement under which her estate is held.

The Revised Oode, 336, article 23, is restrictive of the wife’s power of mortgaging her property as derived from former statutes. “ No conveyance or incumbrance, for the separate debts of the husband, shall be binding on the wife, beyond the amount of her income.” In so far as the wife’s property is embraced in this mortgage, the incumbrance reaches only to the extent of the income. The fee is no further involved, than as it may be necessary to contract it, in order to employ the income, to the satisfaction of the debt. The note being, as to the wife, of no validity, it still remains, however, the debt of the husband, and the legal effect of the mortgage 'is to pledge the wife’s separate estate, to the extent included in it, for the debt of her husband. The other lands if they belong to the husband, are of course subject to the debt. We are of the opinion, therefore, that the separate parcels of land described in the plea, are liable to the debt to the extent of the income; and that the complainant was entitled to this measure of relief, against Mrs. Magee, and the bill ought not to have been dismissed as to her, or her separate property. For this error, the decree of the chancellor is re-, versed, and the cause remanded for further proceedings.