Hooton v. Ransom , 1878 Mo. App. LEXIS 70 ( 1878 )

Hayden, J.,

delivered the opinion of the court

This is a suit in equity to charge real estate of the appellant, held by a trustee to her separate use, with the payment of a note signed by herself and her husband during coverture. The note was a negotiable note, in ordinary form except that it was payable one day after date. It was • indorsed without recourse to the respondent. The petition alleged that before the bringing of this suit the appellant was divorced from her husband, assumed her maiden name, “ and is now a feme sole.” The answer is a general denial. The appellant demanded a jury, which was refused, and the court, upon the evidence afforded by the note, entered a special judgment against the property.

It is contended that a court of equity had no jurisdiction of the case; that under the decision of the Supreme Court of this State in King v. Miltalberger, 50 Mo. 182, the respondent should have sued at law. Without reference to the grounds on which the - decision was there put, we think it clear that an action at law, and not in equity, is here the proper remedy. The general rule is, that if the remedy is plain and adequate at law, equity is not to be resorted to. Equity lends its peculiar processes only where the legal remedy fails, or is for some reason .insufficient. At law the contract of a married woman, whether she has property or not, cannot be enforced. It is indeed not exact to say, as is continually said, that at law the contracts of a married woman are absolutely void, —that they are mere nullities. Even where a married woman has no separate estate, not only is effect sometimes given, both’ at law and in equity, to her contracts, but under certain circumstances they may, both in her favor and against her, create obligations. Dameron v. Jamison, 4 Mo. App. 299; Glass v. Warwick, 40 Pa. St. 140; 2 Roper on Husb. & Wife, *109. In early cases, English courts, while pronouncing such contracts “void,” proceeded to enforce them under certain circumstances (Norton v. Turvill, 2 P. Wms. 144; Stanford v. Marshall, 2 Atk. 69); while in the most recent English cases it is said that though the married woman may not make a contract, she may make an “ engagement.” See English cases infra, and Pollock on Con. (ed. 1876) 64, 70.

But coverture creates a disability at law ; and where the married woman has separate property out of which an obligation can be enforced, equity, during coverture, affixes to the woman the status of a feme sole, and lends its process, that there may be some remedy and that the property may not be beyond -all juridical reach. But the occasion ceasing, there is no propriety in resorting to' the extraordinary remedy. Indeed, on principle it cannot be resorted to. The settlement is during coverture; when the woman is discovert, the separate estate ceases. Thus, if during coverture she has no power of alienation by the terms of the trust, upon the coverture ceasing, her power to alienate arises. As was said by Judge Leonard in Whitesides v. Cannon, 23 Mo. 467, quoting from the Master of the Rolls in Tullett v. Armstrong, 1 Beav. 33, “Whilst the. woman is discovert, the separate estate, whether modified by restraint or not, is suspended and has no operation, though it is capable of arising upon the happening of a marriage.” See Roberts v. Mosely, 51 Mo. 286. So the power of alienation remains, independently of debts contracted if not sued on. Johnson v. Gallagher, infra.

The position taken that the contract creates a lien on the wife’s separate property is untenable. This doctrine would lead to the most mischievous consequences, and has no support in principle. Liens exist where there is, or is supposed to’ be, some peculiar merit in the claim. Here, though, to protect the married woman, peculiar evidence is required; the nature of the contract, as such, cuts no figure; and, as equity does not give liens where contracts are made with women rather than with men, it is difficult to see any ground for the position asserted. The effort of equity is to protect the woman, not to impose additional burdens on her. She is not, indeed, to have property exempt from all process; and accordingly, as a general judgment would be of no avail, equity, furnishing one of its peculiar remedies, makes its decree efficacious by charging her property. As the woman is a feme sole by reason of her separate property, so that property is resorted to to discharge her obligation. There is no necessity of supposing any lien. The creditor has during coverture his equitable remedy. When the coverture ceases, the creditor must sue at law.

Had this suit been brought during coverture, the court below might upon the note, though it is a simple promissory note, signed by the husband and wife, without any further writing, have properly charged the wife’s separate estate. The cases of Coats v. Robinson, 10 Mo. 757, and Whitesides v. Cannon, supra, have never been overruled, but, on the contrary, have recently been confirmed and undoubtedly express the law. Metropolitan Bank v. Taylor, 62 Mo. 388. Even were there any objection to the doctrine of these cases, — which there is not, since it is based upon the best authorities, and carries out elementary principles to their logical conclusions, — it would still be better to adhere to these rulings than in the uncertain way in which the English chancellors have done to vacillate from doctrine to doctrine. But even in England the notion that the execution by the married woman of a formal written instrument operates as creating a specific charge upon her' separate property is now abandoned as untenable. The courts there have at length, though by a roundabout process and by giving a special signification to the word “ engagement” as distinguished from “ contract,” reached a result which we have more directly arrived at. In Johnson v. Gallagher, 3 De G. F. &. J. 508, Lord Justice Turner laid down principles which, though they were disapproved by the Master of the Rolls in Shattock v. Shattock, L. R. 2 Eq. 182, as they have received the especial sanction of the Court of Appeal in Picard v. Hine, 5 Ch. App. 274, and of the Judicial Committee of the Privy Council In London, etc., Bank v. Lemprière, 4 Pr. C. App. 594, may now be considered as the established doctrine of English chancery on this subject. In Johnson v. Gallagher, it was declared that the married woman is in equity a feme sole as to her separate property; that her separate estate is liable not only for her bonds, bills, and promissory notes, but may be for her general engagements ; that the doctrine that the instrument by which the debt is created operates.as an execution of the power of appointment is exploded ; that such instruments create no lien or charge upon the separate property, and do not take effect according to their priorities ; that while the person of the married woman cannot be made liable, equity gives execution against her property as a court of law gives execution against the property of other debtors.

The judgment of the court below is reversed and the case remanded. If the respondent desires to amend, leave should be granted; otherwise the suit should be dismissed.

All the judges concur.