Yale v. . Dederer , 18 N.Y. 265 ( 1858 )

If we assume that the lands of Mrs. Dederer, the appellant, which the plaintiff seeks to charge as her separate estate, are held under a trust for her separate use, and if the trust was created since 1830, the judgment appealed from is erroneous for reasons depending on that assumption alone. By the law of uses and trusts, as revised in that year (1 R.S., pp. 728, 729), there can be no express trusts in lands except such as the statute (§ 55) authorizes, and, in respect to those, it is declared (§ 60) that "every express trust, valid in its creation (except as otherwise provided for), shall vest the whole estate in the trustees, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity." Now, a married woman may be the beneficiary in any one of the trusts which the statute allows to be created, but, like other beneficiaries, her power is qualified by the section quoted. She cannot alienate or encumber the title, which is entirely in the trustee. As she takes "no estate or interest," she has nothing to dispose of either absolutely by a sale or contingently by a charge which may result in a sale. (L'Amoureux v. Van Rensselaer, 1 Barb. Ch. R., 37; Noyes v. Blakeman, 3 Sandf. S.C.R., 531.) The power to dispose of the accruing income under one of these trusts need not now be considered, because the decision under review requires the land itself to be sold in default of personal estate sufficient to pay the debt in question. Without regard, therefore, to incapacity resulting from coverture, Mrs. Dederer could not, on the assumption of a trust, thus dispose of her estate.

I incline to think, however, that we should not presume the existence of any trust, upon the case as it is presented to us. The appellant admits in her answer that she has separate estate, consisting of certain lots of land and personal property, sufficient to satisfy the demand which the plaintiff seeks to enforce. But she does not explain the nature of her interest or title; and the case made on the trial only shows that she owns three farms in the county of Chenango, without any statement as to the mode in which the estate was acquired or the character of the title by which she claims it. Mr. Dederer appears to have been joined in the suit as husband merely. The character of a trustee for his wife is not imputed to him, and no other party is brought before the court sustaining that relation.

In this posture of the case, I think we must assume that the appellant's title is legal and not equitable. Indeed, her admission, and the statement in the case, that she has a separate estate in lands, would, as we have seen, be false in fact and in law, if we take for granted the existence of a trust for her benefit created within the last twenty-eight years. Again, if the plaintiff sought to charge her separate equitable estate, the trustee having the title would be an indispensable party. We should expect, moreover, that the deed or instrument creating the trust would be set forth, in order that the court might determine whether its provisions are consistent with the attempt to charge the estate. For, although a married woman may charge or dispose of property held in trust for her separate use, it is well settled that she cannot do so in any manner or for any purpose inconsistent with the restraints which the author of the trust has seen fit to impress upon it. (Jacques v. The MethodistEpiscopal Church, 1 John. Ch. R., 450; S.C. on appeal, 17John., 548.) The fact found and admitted, that Mrs. Dederer has a separate estate, by no means requires an inference that the property is held under a trust. By the statutes of this state which had been in force several years before this suit was commenced (Laws of 1848, ch. 200, and of 1849, ch. 375), she could acquire and hold in actual possession and enjoyment a separate legal estate in lands or personal property. So, before those statutes were passed, and at the common law, she could hold such an estate in lands vested in interest, although not in actual enjoyment while the coverture remained.

Regarding, then, the appellant as the owner of the lands which are called her separate estate, without the intervention of any trust, the plaintiff's case is met by another difficulty. Do the disabilities of coverture prevent her from disposing of or charging an estate in lands in which she has the legal and the whole title? Until the change which has been mentioned was made by the legislature in the law of trusts, there was a well settled doctrine that a married woman could deal with her separate estate as though she were a feme sole. But this doctrine was a pure creation of the courts of equity. Trusts for the separate use of married women were a marked although a beneficent innovation upon the rules of the common law. But when the courts of equity sustained their validity and recognized the wife's estate under them, it seemed to be a necessary result that she should have the power of disposition; and accordingly the power was conceded. In many of the adjudged cases, the exercise of this power has been spoken of as an appointment of the estate authorized by the deed or settlement in trust; but the settled doctrine now is, that she may dispose of or charge the estate in any manner and for any purpose not conflicting with the instrument under which she acquired it. (Jacques v. Methodist Episcopal Church, supra,and cases cited.) The right of disposition must, therefore, be referred to the right of property enjoyed independently of the husband, and not to the theory of appointment pursuant to a power conferred by the author of the trust. She might be restrained by the provisions of the trust deed or instrument; but if not so restrained, she acted as a feme sole in the disposition of her separate estate.

But the separate estates upon which the courts of equity engrafted these peculiar doctrines included necessarily only such rights and interests of the wife as would belong to the husband but for the limitation to her particular use. Such were personal estate, the rents and profits of lands during coverture, and the inchoate title which, by the birth of a child, the husband might acquire as tenant by the curtesy. As to all such interests, the assent of the husband to a separate use, duly manifested, or a direction to that effect by the donor of the estate, would give to the wife all the disposing capacity of afeme sole. But her own reversion in lands, when she owned them at the time of the marriage, was a legal estate descendible to her heirs, to which courts of equity did not and could not well apply the doctrines which have been stated. In reference to such an estate, she only had the disposing capacity which the common law or some enabling statute allowed to her. She could divest her title and bar the descent to her heirs, in England only by a fine or recovery, and in this country only by a conveyance with certain solemnities of examination and acknowledgment. Her acquisition, through a trust, of equitable rights which at law would belong to the husband, manifestly could not enlarge her capacity to deal with estates which at law as well as in equity were entirely her own.

So an estate in fee might be conveyed directly to a woman after marriage, to her sole and separate use. In such a case, equity would convert the husband into a trustee for her of the rents and profits, during the coverture, which otherwise would belong to him. In dealing with those, she would have the capacity of afeme sole, upon the principles which have been stated. But in respect to the corpus of the estate, she could not dispose of it except in the mode prescribed by law, that is, by a fine or recovery, or such other solemnity as the law required for the disposition of estates in land by married women. (Roper onHusband and Wife, 182; 2 Story Eq., § 1392; Clancy Rights ofMarried Women, 287, and cases cited in notes to theseauthorities.) If, however, the deed to her during her coverture not only conveyed the estate to her, to her sole and separate use, but in terms gave her an absolute power of disposal, then, acting under the power specially conferred, it seems she could, without the solemnities required by law, convey the whole estate, although no trust was interposed to protect the exercise of the power. (Story Eq., supra.) But this required the aid of no doctrine of equity peculiar to separate estates, for a married woman may execute a power without imputing to her the character or capacity of a feme sole. Equity, it seems, in such cases, if not the law, preserved the power, although the donee also held the fee of the lands in respect to which it was to be exercised.

These general principles, which scarcely admit of question, are evidently fatal to the present attempt to charge the fee of Mrs. Dederer's lands, and to dispose of that fee for the satisfaction of her alleged debt. The well known disabilities of coverture, as they exist at the common law, prevented her from thus disposing of her real estate. This would be decisive of the case before us, but for the recent legislation of this state "for the more effectual protection of the rights of married women." (See theStatutes of 1848 and 1849, above cited.) It has not been claimed on the argument that the case is influenced favorably to the plaintiff by these statutes. They nevertheless seem to require some consideration.

The act of 1849, amending the law of 1848, provides that "any married female may take, by inheritance, gift, c., and hold to her sole and separate use, and convey and devise, real and personal property," c., in the same manner and with the like effect as if she were unmarried. In respect to estates acquired and held under the protection of this statute, the disabilities of coverture would seem to be removed. A married woman may "convey and devise" real and personal property as if she were unmarried. She may, therefore, dispose of lands, in which she holds the legal title, without joining with her husband in the conveyance, and without the solemnity of private examination and acknowledgment. I think it is plain, however, that the statute does not remove the incapacity which prevents her from contracting debts. She may convey and devise her real and personal estate, but her promissory note or other personal engagement is void, as it always was by the rules of the common law. This legal incapacity is a far higher protection to married women than the wisest scheme of legislation can be, and we should hardly expect to find it removed in a statute intended for "the more effectual protection of her rights." It is quite another question, however, whether she may not charge her legal estate, held under this statute, in the cases and to the extent recognized by courts of equity in respect to estates held under a trust for her separate use. The right to charge her separate estate, in equity, resulted from the jus disponendi which courts of equity regarded her as having, and it was a necessary incident of the full enjoyment of her property. It would seem, for reasons quite similar, that she should have the power to charge an estate acquired and held under the statute referred to. The estate it is true, is a legal one; but the disability of coverture, which, as we have seen, prevented her from disposing of or charging such estates in equity, no longer exists. That disability, as we have also seen, was overcome when she acted under a power of disposition conferred by the instrument conveying the estate. But that power is given in the broadest terms by the statute, and I see no reason why a power thus bestowed should not be equal in its results to one conferred by a private instrument. My conclusion, therefore, is that, although the legal disability to contract remains, as at common law, a married woman may, as incidental to the perfect right of property and power of disposition which she takes under this statute, charge her estate for the purposes and to the extent which the rule in equity has heretofore sanctioned in reference to separate estates.

But without knowing facts which are not stated in the case, such as the time of Mrs. Dederer's marriage and the time when she acquired the lands in question, it is impossible to say with any certainty whether she holds her title under the statute and with the power of disposition which it confers. If we assume that to be her condition (and the facts may so appear hereafter), then we are brought to the question principally discussed on the argument, and that is whether she can and does charge her separate estate, real or personal, by signing a promissory note, in no way for the benefit of such estate, but as surety merely for her husband. This question I have examined with the attention which its importance deserves.

The contract of a married woman being void at law, the difficulty of subjecting her estate in equity to the payment of a note or bond given by her was felt by the courts to be very great. The difficulty was, however, overcome, and the rule must now be regarded as settled, that the written engagements of a married woman, entered into on her own account, to pay money, are to be satisfied out of her separate estate. (North American CoalCompany v. Dyett, 7 Paige, 9; Heatley v. Thomas, 15Ves., 596; Bullpin v. Clarke, 17 Ves., 365; Stuart v.Kirkwall, 3 Madd., 387; Owens v. Dickenson, Craig Phil., 48; 2 Story Eq., § 1400.) Where the obligation is not on her own account, and in no sense for the benefit of her estate, the question, whether a charge is thereby created, must depend, I think, on the principle which lies at the foundation of the rule just stated. If the note or bond of a feme covert is to be taken as a particular appointment of her estate to pay it, in the nature of an execution of a power of disposition, then I see no reason for a distinction where she is a surety merely. This was the theory of some of the cases on the subject, but this was obviously a mere fiction. A simple engagement to pay money is not in its nature an engagement to pay out of any particular fund, and cannot, except by a fiction, be regarded as an appointment or disposition of the fund. There is also this further difficulty, which was suggested by Lord COTTENHAM, in Owens v. Dickenson (supra.), that if a married woman has contracted several debts in writing, and the instruments are to be regarded as appointments of her estate, the creditors would take priority according to the date of the several instruments. The contrary of this is plainly true. The creditors of a femecovert have no priority over each other, unless it be acquired by superior diligence in proceeding to obtain satisfaction, or by some specific lien expressly created for that purpose. Again, as the law now is with us, since the statute of 1849, suppose before or after marriage she takes real or personal estate by inheritance or distribution: in such a case, the fiction of appointment under a power, when she disposes of such an estate, is too absurd to be for a moment entertained.

The earliest cases on this subject proceeded on a more intelligible principle, which did not require the aid of a fiction. Thus, in Norton v. Turville (2 P. Wms., 145), payment of a married woman's bond, given for money borrowed by her, was decreed out of her separate estate, on the ground that it was to be deemed as held in trust for the payment of her debts. This was regarded as one of the separate uses for which the trust was created. So, in Peacock v. Monk (2 Ves.,Sen., 193), Lord HARDWICKE said: If a wife, having an estate to her separate use, borrowed money and gave a bond for its payment, this would give a foundation to demand the money out of her separate estate. So also, in Hulme v. Tenant (1 Brown C.C., 20), Lord THURLOW held that the trustees of a married woman's estate were obliged in equity to apply it to the satisfaction of her general engagements. These early cases did not suggest the fiction of an appointment, but proceeded on the notion of a trust and the plain equity of requiring a married woman's engagement, entered into for her own benefit, to be satisfied out of the trust estate. Afterwards that fiction was resorted to, which, besides the objection to it as a mere assumption, having not the slightest foundation in fact, worked the actual injustice of rejecting the claims of creditors whose demands were based upon a mere general assumpsit for money had and received, where there was no written engagement to pay. In such cases the fiction of appointment was too grave to be received, and therefore, as there was no appointment, there could be no charge, and so it was held. (Bolton v. Williams, 2Ves., Jr., 138; Jones v. Harris, 9 id., 486.)

But the still later cases have in terms or effect repudiated the fiction of an appointment, and with it the distinction between the written engagement of a feme covert and her general liability for money advanced, services rendered or goods sold. InOwens v. Dickenson (supra), Lord COTTENHAM restored the liability of separate estates to the basis on which it had been rested in the early cases above cited. His observations in that case demonstrate with great clearness that a simple note or bond cannot, in its very nature, be an appointment or charge upon the estate. Speaking of such instruments, he said: "It has sometimes been treated as a disposing of the particular estate; but the contract is silent as to the separate estate, for a promissory note is merely a contract to pay, without saying out of what it is to be paid or by what means it is to be paid, and it is not correct, according to legal principles, to say that a contract to pay is to be construed into a contract to pay out of a particular property, so as to constitute a lien on that property." "Equity," he adds, "lays hold of the separate property, but not by virtue of anything expressed in the contract; and it is not very consistent with correct principles to add to the contract that which the party has not thought proper to introduce into it." (Murray v. Barlee, 3 Myl. K., 209 Bell on the Law ofProperty, 518, 519; Macqueen on Husband and Wife, 301, 303.) The principle, in short, which now governs in cases of this kind, is that a wife's separate estate is liable to pay her debts during coverture, in whatever form they are incurred, not because her contracts have any validity at law, nor by way of appointment or charge, but because equity decrees it to be just that they should be paid out of such estate. Of course, it is not to be denied that a wife may appoint or specifically appropriate her separate estate to the payment of her own or her husband's debts. She may, if she pleases, even give it to her husband. What I am denying is that contracting the debt is, of itself, an appointment or charge.

Can, then, the principle on which the liability depends be extended to cases of mere suretyship for the husband or a stranger? It seems to me it cannot. The obligation of a surety, in all other cases, is held to be stricti juris, and if his contract is void at law, there is no liability in equity founded on the consideration between the principal parties. Thus, inLudlow v. Simond (2 Cai. Cases in Error, 1), the bill was filed to sustain a contract against a surety who had been technically discharged at law. The subject was very fully examined in the Court of Errors by Chief Justice KENT and by Justices SPENCER and THOMPSON, and the suit was determined against the plaintiff, on the ground that there was no equitable liability upon a surety where he could not be held at law. Why should a married woman be made an exception to this rule? We are to remember that her contract is absolutely void at law; and when she is a mere surety there is no equity springing out of the consideration. If the promise is on her own account, if she or her separate estate receive a benefit, equity will lay hold of those circumstances and compel her property to respond to the engagement. Where these grounds of liability do not exist, there is no principle on which her estate can be made answerable. If we hold that the signing of a note as surety brings a charge upon her estate, we must go further, and hold also that her guaranty, her indorsement, her accommodation acceptance, her bail bond, indeed every conceivable instrument which she may be persuaded to sign for her husband or others, although absolutely void at law, are so far binding in equity as to charge her property with its payment. This would be a doctrine sustained by no analogies and opposed to the soundest policy. It would go far to withdraw those checks which are intended to preserve a wife from marital influences, which may be and often are unduly exerted, and yet baffle all detection. The doctrine that equity regards her as a feme sole, in respect to her separate estate, only admits that she may dispose of such estate with or without consent of her husband, and without the solemnities which the law in other cases requires. But her mere promise to pay money, as we have seen, is not of itself such a disposition. Courts of equity, proceeding in rem., will take hold of her estate and appropriate it to the payment of her debts. But when her obligation is one of suretyship merely, she owes no debt at law or in equity. If not at law, which is very clear, then quite as clearly not in equity.

It is true, there are one or two English cases in which the trustees of a wife's separate estate were decreed to apply the personal property or the rents and profits of lands to the payment of her obligation as surety. (Stanford v. Marshall, 2Atk., 69; Heatley v. Thomas, 15 Ves., 596.) But those cases were decided at a period when the doubt was whether a mere obligation of any kind to pay money could bring a charge upon her estate, without any reference to the distinction between debts contracted for the benefit of herself or of the estate, and engagements entered into as a surety. That distinction was not considered. On the authority of those cases, dicta to the same effect may be found in one or two elementary treatises. (2 StoryEq., § 1400.) We have also been referred to the case in this court of Vanderheyden v. Mallory (1 Comst., 452). But the point determined was, that the debts of a wife contracted before marriage were not a charge upon the separate estate held by her during the coverture. The remark of Ch. J. JEWETT upon the question now involved was obiter merely, and it appears to have been founded entirely on the observation cited from Judge STORY. The case did not call for an examination of any such question. No decision in this state has ever gone beyond the doctrine which I have stated. (Curtiss v. Engel, 2Sand. Ch. R., 287; North American Coal Company v. Dyett, 7Paige, 9; S.C., 20 Wend., 570.) In Curtiss v. Engel, it was held by Vice-Chancellor SANDFORD that, in order to create a charge, it must be shown either that the debt was contracted for the benefit of the wife's separate estate or for her benefit upon the credit of such estate.

I am satisfied, on the whole, that the decision now under review is, upon the facts before us, opposed to principle and sound policy, and that it rests upon the basis of no established doctrine. The judgment should be reversed and a new trial granted.