Warren v. Brown , 25 Miss. 66 ( 1852 )

Mr. Justice Yerger

delivered the opinion of the court.

The complainant filed a bill to enjoin the sale of some town lots in the town of Columbus, to which she had a lease for ninety-nine years, renewable for ever; and wFich by deed, jointly with her deceased husband, she conveyed to the defendant, Eggleston, in trust to secure a debt due by her husband to the defendant, Brown. The ground of relief chiefly relied upon is, that the deed was executed under threats and duress and without her voluntary consent. The proof of the threats and duress seems ample, but it is not shown that either Brown or Eggleston was aware that they had been used. It is insisted, that in the absence of such knowledge upon their part, the acknowledgment made by complainant before the magistrate, estops her from denying the validity of the deed.

The title of complainant to the premises was derived from trustees of the Franklin Academy, by a lease made to her during coverture, on the 14th of August, 1847. But defendants allege, that the consideration was paid by the husband, and that complainant cannot, therefore, hold the property in her own name; but that the same belonged to the husband, and is subject to his debts.

The acknowledgment made by the complainant is not in accordance with the statute, but is defective in an essential particular. It is true that it states, that it was made “ separate and apart from the husband; ” but it does not purport to have been made on “ a private examination.”

This is as essential a requisition of the statute as an examination “ apart from the husband.” For it will be readily seen, that the objects of the statute might be as easily defeated, if the examination was not made in private, as if made in the presence of the husband.

This view of the case renders it unnecessary to decide, whether a feme covert would be estopped by an acknowledgment made in due form from showing threats or duress.

This brings us to the consideration of the second question. Had the complainant a separate estate in the premises by virtue of the lease to her ?

As the wife cannot be a trustee for the husband, it has long been a principle of courts of equity, that purchases made by him in her name during coverture would be treated as advancements made to her. In this case, it appears from the petition of G. D. Warren, the husband, made on the 13th of August, 1847, to the trustees of the Franklin Academy, that Mrs. Warren, his wife, became “the owner, by purchase from Joseph Bryan,” of the lots in controversy; and the petition contained a prayer, that a deed for them might issue in her name, which was accordingly done. One of the witnesses proves, that the husband,, at the same time, paid the balance due from Joseph Bryan on the original lease of the lots. It is said, the money he thus used was his own, and not Mrs. Warren’s. Of this there is no direct proof; but if it be conceded, the case falls within the principle of equity we have just stated, and must be considered as an advance to the wife for her separate use.

But it is said, that if the money was advanced by the husband, the wife cannot hold the property in her own name, because of the proviso of the first section of the act of 1839. Hutch. Code, 496.

In the case of Ratliffe v. Dougherty, 2 Cushm. 181, we stated that the act of 1839 was an enabling, not a restraining statute, and intended, to extend, not to limit, the powers of married women to hold separate property; and we there held, that a deed made directly by the husband to the wife, though void at law, would be sustained in equity against him, though not against his creditors. And the rule there laid down, we would apply to this case, had the conveyance been made by the husband to the wife. But here the husband did not make the deed to the wife. The conveyance was made to her by a stranger. The title to the property never was in the husband, and it does not, therefore, fall within the proviso to the first section of the act of 1839, as the “property,” in the words of the proviso, “did not come from him.”

But it is said, he advanced the money which paid for it. This may be true. Before the act of 1839, a husband could make such purchases in the name of his wife, and they were treated as advances made to her separate use. The power still exists, in our opinion, not impaired by that act; and the only inquiry that can be made under such circumstances, is, whether the advance was made bond fide. Of course, such advances being merely voluntary, would be set aside, at the instance of creditors, in all cases arising since the act of 1839, in which, under like circumstances, they would have been set aside if the act had not been passed.

The record before us contains no suggestion of fraud, and the debt which the defendants seek to collect, was made subsequent to the lease to Mrs. Warren. Under such circumstances, we think a court of equity will protect her right to the property. The decree of the court below must be reversed, and the cause remanded.