Opinion
10-13-1879
GARLAND v. PAMPLIN & als.
S. V. Southall and J. T. Brown, for the appellant. Robert Whitehead, for the appellees.
Absent, Moncure, P., and Anderson, J.
M, the wife of P, was entitled to real estate by descent from her father and by devise from W, but her husband had not reduced any part of it into possession when he made a deed, by which he conveyed to C and L all his interest and right in said estate in trust for the sole and separate use of his wife M, free from all claim by him, with full power in her to control and dispose of the same as if she was not a married woman. The real estate was afterwards divided, and M came into actual possession of it, and she sold a part of it to McD, retaining the title, who improved it, and sold it again to her; and she executed her bond to S, by direction of McD, for a part of the purchase money. She also executed to B a bond as security for G. Upon a creditors' bill by S to subject the land of M to pay his debt--HELD:
1. Whatever interest the husband had in the real estate of his wife M, whether as tenant by the mere marital right, or as tenant by the courtesy initiate, was conveyed by the deed in trust for his wife; and such estate was liable for his debts and subject to his disposal by deed without the concurrence of his wife.
2. By this deed M acquired in equity a separate estate in her husband's estate and interest in her lands conveyed to the the said trustees, distinct from her legal estate in fee in said lands, and which did not merge in said legal estate.
3. Under this deed, and upon the well settled principles of equity, M had full power to use, control, alien and dispose of her said separate estate as if she were a feme sole; and as incident to this absolute power of alienation, she had the right and power to charge and encumber said separate estate with the payment of debts.
4. M, by executing the bonds to S and B, must be presumed to have intended thereby to charge the said separate estate with their payment, and the said separate estate is therefore in equity liable for such payment. But such liability extends only to said separate estate in the interest of her husband and acquired under the deed aforesaid, and not to the legal estate in fee of M in said lands; which legal estate is distinct from said separate estate, and could not be charged by the mere execution of said bonds, with the payment thereof, by reason of her disabilities of coverture.
5. M by reason of her disabilty of coverture, had no power to sell to McD the fee in any part of her lands; and so the contract was not voidable merely, but absolutely void. She could make a valid sale of her separate estate, and only to that extent she did or could bind said land; and such interest, but not the fee, was subject to sale for the payment of the bond of S.
6. The court below should order accounts to be taken of the said separate estate, and of all debts or claims for which said estate is liable, upon the principles aforesaid, including the bebts of S and B; and when said debts have been established, to proceed to subject said separate estate to the payment of the same.
7. The bonds, though void at law, are valid in equity, as evidences of debt against the separate estate of M; and the debts are not barred by the statute of limitations as simple contract debts.
This was a creditor's suit in the circuit court of Nelson county, brought in August, 1874, by Samuel M. Garland, to subject the real estate of Martha L. Pamplin, the wife of John H. Pamplin, to the payment of a bond for $884, executed by said Martha L. Pamplin to the plaintiff in 1856, and payable on the 1st of January, 1857. The bond purports to be given in part of the purchase money of land and buildings thereon (mills, & c.) at the Gulf Ford, purchased by Mrs. Pamplin of James McDonald and others. It appears that Mrs. Pamplin had sold to McDonald this land, retaining the title; that McDonald had made extensive improvements thereon, building a mill and other houses; and that she afterwards purchased it back at an enhanced price; and McDonald being indebted to Garland, this bond was executed to Garland by the direction of McDonald. The plaintiff insisted that he was entitled to a vendor's lien on this land, in preference to any other creditor of Mrs. Pamplin.
The bill then sets out a deed made on the 6th of September, 1845, between John H. Pamplin, of the first part, Daniel H. Cheatwood and Jane London, of the second part, both of whom the bill states are dead, and Martha L. Pamplin, wife of John H. Pamplin, of the third part, by which said John H. Pamplin conveys to the parties of the second part all his interest in the estate, real and personal, of his said wife, upon trust for the separate use of the wife; and prays that the land purchased of McDonald may be subjected to the payment of his debt, and for an account of his debt, and of all real estate liable to its payment, and all liens upon it, & c.
In October, 1875, Willis A. Brockman filed his petition in the cause asking to be made a party, and setting out that he is a creditor of Mrs. Pamplin by a bond executed in November, 1863, by a certain B. F. Gatlin, John H. Pamplin and Martha L. Pamplin. He admits the debt is subject to be scaled; but is due, principal and interest.
It seems to be impossible to understand the questions involved in the cause and considered by this court, without giving the deed of John H. Pamplin to Cheatwood and Jane London. That deed, which was duly recorded, proceeds as follows:
This indenture, made this 6th day of September, in the year 1845, between John H. Pamplin of the first part, Daniel A. Cheatwood and Jane London of the second part, and Martha L. Pamplin, wife of the said John H. Pamplin, of the third part, witnesseth that, whereas, there is at the date of these presents in the hands of the said Daniel A. Cheatwood, as administrator of Lavender London, dec'd, a portion of his estate which the said John H. Pamplin has not, as the husband of the said Martha L. Pamplin, reduced to his possession, she being one of the heirs at law, and distributee of the said Lavender London, dec'd, and, whereas there is also at the date hereof, certain slaves and other property in the hands of the said Jane London, as widow of the said Lavender London, held in right of dower, and of which the said Martha L. Pamplin will be entitled to her distributive share at the death of her mother, and which the said John H. Pamplin has not, as husband, reduced to his possession; and whereas also the said Martha L. Pamplin is entitled to certain rights and property in the estate of Austin Wright, dec'd, of whose will the said Lavender London was the executor, and which interest, right and property, the said John H. Pamplin has not as husband of the said Martha reduced to his possession; and whereas also the said Martha is entitled in her own demesne as of fee to certain lands situated and lying in the county of Nelson, a portion thereof descended to her from her father, the said Lavender London, dec'd, and which has never yet been divided between herself and the widow and the other heirs at law, and into which the said John H. Pamplin, as husband, has never entered; and she is also entitled to certain lands in said county devised to her from her uncle, Austin Wright, dec'd, and into which the said John H. Pamplin has never entered; and the said John H. Pamplin being disposed, as an act of justice to his said wife, not to reduce her said property and estate to his possession and divest her thereof, and to leave the same untouched and unaffected by his marital rights, or by any exercise on his part of such marital rights by reducing it to his possession or of appropriating it in any manner whatsoever, so that she may at any aftertime receive, control, enjoy and dispose of the same for her own separate use and benefit, separate and apart from him as fully as if no marriage had ever been had between them, leaving her the power and right to dispose of the same as fully as if she were an unmarried woman. Now to effectuate these ends, and in consideration thereof, and for the further consideration of one dollar in hand paid to him by the said Daniel A. Cheatwood, who is the brother-in-law of the said Martha, and the said Jane London, who is her mother, he, the said John H. Pamplin, doth by these presents covenant and agree with the said Daniel A. Cheatwood and Jane London, and with each of them, that he will not at any aftertime after the date of these presents, take any step or make any attempt in law or equity, or in any other manner or form whatsoever to reduce to his possession, or to sell, transfer, convey or assign or in any other manner interfere with any of the rights, interests, property and subject hereinbefore referred to as belonging to the said Martha, and that he will abandon, as he does hereby abandon, all manner of right to or control over said property and subject; that he will abandon, as he does hereby abandon forever, all manner of marital right which he could exercise over the same, leaving the same for the use, benefit and support of the said Martha, as fully as if she had never married, and hereby agreeing that the said property, right, interest and subject shall stand forever discharged from any claim on his part, as husband, leaving the same in the hands of the said Daniel A. Cheatwood and Jane London, in trust for the said Martha L. Pamplin, leaving them to account with the said Martha, therefor, in any manner consistent with the equity in her favor flowing from this indenture, as also leaving them, the said Daniel A. Cheatwood and Jane London, for and in behalf of the said Martha to enter upon the said lands for the use and behoof of the said Martha, untrammeled by any marital right of the said John H. Pamplin, intending that the said Martha shall stand protected by the trustees aforesaid, and by each of them against any and every attempt, act or deed of the said John H. Pamplin, as husband or otherwise, in relation to the said rights and property and estate of the said Martha, hereby and herein enumerated and specified. And the said John H. Pamplin, for himself, his heirs, ex'ors and adm'rs, covenants and agrees to and with the said Daniel A. Cheatwood and Jane London, that he will well and truly perform all the stipulations contained in this indenture to be performed on his part, and this indenture is not only not to be construed as an act of ownership over said rights, interest and estate hereinbefore enumerated, but it is to be construed as a covenant and declaration on the part of the said John H. Pamplin, that he never has, nor never will exercise any marital right whatever in relation to said property, subject and estate by reducing it to possession or otherwise interfering with it in any manner or shape whatever, in law or equity, or otherwise.
In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.
| JOHN H. PAMPLIN, | [Seal.] |
| DANIEL A. CHEATWOOD, | [Seal.] |
| JANE LONDON, | [Seal.] |
Mrs. Pamplin filed her answer in the cause. She insists that a married woman cannot execute a sealed instrument that can bind her; and that as the said writings are only simple contract debts, they are barred by the statute of limitations, and she relies upon the statute; except so far as the Gulf Ford land itself may be liable by sale to pay Garland what may be due on his bond. She insists that upon the conveyance by John H. Pamplin of his interest in her real estate, it merged in her fee simple interest in said real estate, and she held the same free from any trust created by said deed, and could only dispose of it in the manner prescribed by the statute, for the conveyance of real estate by married women. And she denies that the fee simple in her land, or the issues or profits thereof, are liable in any mode of proceeding for said debts, even if they are binding on her, or any separate estate she might have, and are not bound by the statute of limitations. As to Garland's debt, she insists she had no power to buy lands; and that no property of hers is liable to pay any balance of said debt, which a sale of said land will not produce. She denies that Brockman's debt is in any sense her debt, except as security in a sealed instrument for the debt of the principal, and not for her husband. And she denies that she has done any act, or intended to do any, indicating an intention to bind any separate estate she may have. She insists further, that if she holds a separate property under the deed of her husband, by the express terms of the deed there is a trust for her support, and she could not bind said estate so as to deprive herself of a support out of the rents and profits thereof, and she avers that the rents and profits are not sufficient to provide for her the support intended by the deed. She insists that Brockman's debt was for a loan of Confederate money to B. F. Gatlin, and should be scaled.
The cause came on by consent to be heard in vacation on the 20th of January, 1877, when the court made a decree by which certain commissioners named should proceed to sell the Gulf Ford tract of twenty-six and a half acres of land in the bill and proceedings mentioned, for so much cash as may be necessary to defray the expenses of sale, and the plaintiff Garland's costs, and on a credit of one, two and three years, with interest from the day of sale for the residue of the price of said land, and take bonds with good security bearing interest as aforesaid, and retain the title, & c.
And it was further decreed that one of the commissioners of the court, upon being requested so to do by the plaintiffs, or either of them, do take an account of the value of the real estate, except the Gulf Ford tract aforesaid, mentioned in the deed of the 6th of September, 1845, and also of the annual rents, issues and profits of the same; and also enquire, ascertain and report whether John H. Pamplin, the hushand of Martha L. Pamplin, is of ability to maintain and support his said wife in a decent and comfortable manner, independent of the said real estate; and if not, how much and what part of the rents and profits of the said real estate are necessary and ought to be appropriated to her support and maintenance. And thereupon Samuel M. Garland applied to a judge of this court for an appeal from said decree, except as to the sale of the twenty-six and a half acres; which was awarded.
S. V. Southall and J. T. Brown, for the appellant.
Robert Whitehead, for the appellees.
OPINION
BURKS, J.
At the date of the deed executed by John H. Pamplin, Daniel A. Cheatwood, and Jane London, Martha L., the wife of the said John H. Pamplin, was entitled in fee simple to certain lands in Nelson county derived by descent from her father, and to other lands in said county devised to her by her uncle, Austin Wright. The controversy in this case relates exclusively to these lands, and the bill seeks to subject them as the separate estate of the said Martha L. Pamplin, created, as alleged, by the deed aforesaid.
The court is of opinion, that all the estate, right, title, and interest of the said John H. Pamplin, as husband of the said Martha L., in and to said lands, passed, under and by virtue of said deed, to the said Daniel A. Cheatwood and Jane London, in trust for the said Martha L. Pamplin.
The deed is not merely a renunciation by the husband of all his marital rights in respect of said property, but it is a renunciation in favor of his wife, and to make it effectual, it is expressly provided, " that the said property, right, interest, and subject shall stand forever discharged from any claim on his part, as husband, leaving the same in the hands of the said Daniel A. Cheatwood and Jane London, in trust for the said Martha L. Pamplin, leaving to them to account with the said Martha," & c. The intent, as well as the legal effect, of this deed, was to invest the said Daniel A. Cheatwood and Jane London with whatever title the said John H. Pamplin had to these lands in right of his wife, and to create a trust for her benefit.
The precise nature and extent of the husband's interest in the lands do not distinctly appear from the record. They might and should have been made to appear more satisfactorily. The seisin of the wife is not questioned in the pleading or in the arguments of counsel. According to the recitals of the deed, at the date thereof, the lands descended and devised had not been divided amongst the heirs and devisees, but they were no doubt in the possession of some or all of them. Partition was made at some time, it does not appear when.
It is clear that the seisin of one is the seisin of all the co-parceners and co-tenants. Marriage alone, without issue, casts upon the husband an estate in all the wife's real property in possession, whether of inheritance or of freehold for life, during the joint lives of himself and wife. The death of the wife, or the death of the husband, ends this estate. If the property comes to the wife after marriage, the consequence is the same. Such an estate is denominated by some text-writers an estate as tenant by the mere marital right, as distinguished from an estate as tenant by the courtesy initiate. If the wife is actually seized, during the coverture, of an estate of inheritance, such as that the issue of the marriage may by possibility inherit it as heir to the wife, upon the birth of such issue alive the husband acquires an estate in the land as tenant for his life, which, during the coverture, is said to be initiate; and upon the death of the wife, if he survive her, becomes consummate.
It does not appear in this case whether or not there was issue of the marriage. However that may be, whatever estate, right, title or interest the husband, as such, had in the lands in question, whether as tenant by the mere marrital right or as tenant by the courtesy initiate, was conveyed by the deed aforesaid in trust for his wife. Such estate was liable for his debts, and was subject to his disposal by deed without the concurrence of his wife. Poindexter & wife v. Jeffries & others, 15 Gratt. 363, 376; 2 Minor's Ins. (2d ed.), 103, et seq.; 1 Bishop's Law of Married Women, §§ 53, 535 (note 3), 536; 1 Wash. on Real Prop. 137, 141 (mar. pp.); 2 Kent's Com. 130, 131 (mar. pp.); 4 Id. 28, 29, 30, et seq. (mar. pp.)
The court is further of opinion that, under and by virtue of the said deed, Mrs. Pamplin acquired a separate estate in the interest which her husband had in the lands, and which was conveyed to the trustees named in said deed, and that this equitable estate was distinct from her legal reversionary estate in fee, and did not merge therein.
If there had been no language used in the deed appropriate to the creation of a separate estate, still the deed itself would have imported such estate.
The general rule is that a conveyance by the husband directly to his wife, although void at law, or to a third person for her benefit, is construed as operating to her separate use; and the reason assigned is, that the conveyance otherwise would be wholly inoperative. Leake, trustee, v. Benson & als., 29 Gratt. 153; Harshberger's adm'r & als. v. Alger & wife, 3 Va. Law Journal, 78, 85; 31 Gratt. 52, and authorities cited in these two cases.
But the language in the deed leaves no room for doubt on this question. The separate estate is expressly created, and resort to implication is unnecessary.
Merger is described as the annihilation of one estate in another. It takes place ususually when a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, whereby the less is immediately merged--that is, sunk or drowned in the greater. To this result, it is necessary that the two estates should be in one and the same person, at one and the same time, in one and the same right. 2 Bouv. Institutes, 375, No. 1989; 2 Minor's Inst. (2d ed.), 368, et seq.
It is perfectly plain that under the construction we have given to the deed of September 6, 1845, there was no merger in this case. The legal title to the particular estate is in the trustees under the deed, or their representatives, while the reversion in fee is in the wife. The two estates have never met in the same person, and therefore merger is impossible. For the like reason, there has been no merger of the wife's equitable estate. Generally, where the legal and equitable estates in the same subject meet in the same person, the equitable is merged in the legal estate, because, as it is said, one cannot be trustee for himself. Here the wife still holds her equitable estate, while the legal title to the subject is outstanding in the trustees. Even, however, where merger would take place at law, equity often interferes to prevent it. It is not favored in equity, and is never allowed, it is said, unless for special reasons, and to promote the intention of the party. While the rule at law may be inflexible, in equity it depends upon circumstances, and is governed by the intention, either expressed or implied (if it be a fair and just intention), of the person on whom the estates unite, and the purposes of justice, whether the equitable estate shall merge or be kept in existence. 4 Kent's Comm. 102 (mar. p.); Brockenbrough's ex'x v. Brockenbrough's adm'r & others (not yet reported); 2 Minor's Inst. 369 (2d. ed.)
Now, manifestly, the intention of the deed of September 6, 1845, was to divest the estate of the husband in his wife's property and secure it to her separate use. If merger was the immediate consequence, as contended for by the appellee's counsel, then the husband's marital rights reattached eo instanti, and the intended operation of the deed was defeated. Such a result a court of equity never would permit. But it is not necessary to invoke this equitable rule in the present case, as we are of opinion, for the reasons already stated, that merger was not possible under the circumstances.
The court is further of opinion, that Mrs. Pamplin, although she labors under all the disabilities of coverture as to her reversion in fee in said lands, has, in equity, under said deed, all the rights and powers of a feme sole in and over her said separate estate. She takes the whole interest of her husband under the deed as her separate estate without limitation or restriction upon her powers over it. Indeed, the largest powers are expressly conferred. Her husband renounces in her behalf all his marital rights in her property and stipulates, that she " may at any aftertime receive, control, enjoy, and dispose of the same for her own separate use and benefit, separate and apart from him as fully as if no marriage had ever been had between them, leaving her the power and right to dispose of the same as fully as if she were an unmarried woman. Such is the broad language of the deed. The stipulation of the husband in the subsequent part of the deed, that he would leave the property " for the use, benefit and support" of his wife " as fully as if she had never married," is of the same import as the language already quoted? It is not restrictive in its meaning and application. It must be read in connection with what precedes and follows. It is evidently used to exclude the husband's rights, not to limit or restrain the wife's, and the same intent is manifest in every part of the deed. Under this deed, Mrs. Pamplin has the power to use, control, enjoy and dispose of her separate estate, which is confined to her husband's interest in her lands (the personal property having perished), in like manner and to the like extent as if she were sui juris. In fact, under this deed, she is, in equity, sui juris as to this separate estate.
The court is further of opinion that as the greater includes the less, the absolute power of alienation in the wife includes the power, at her will and pleasure, to encumber and charge her separate estate with the payment of debts. While she cannot, by her engagements, subject herself to any personal judgment or decree, she may bind her separate estate, if she will, and equity will make good the charge against the estate. To bind the estate, her engagements must have reference to and be made upon the credit of such estate. She must intend to make it liable. The intention, however, need not be express. It may be implied. It is implied, unless there is something to rebut the implication, when she executes a bond, note or other instrument for the payment of money, either as principal or as surety for her husband or other person. Such is now the well settled law of this state. As the charge or liability is a question of intention, it may of course be extended to the whole or to a part of the estate. If no specific part is appointed for the payment of the debt, the fair implication is that the whole estate was intended to be made liable. If, on the other hand, only a part of the estate, expressly or by fair implication, is designed to be charged, no liability will attach to the residue. Burnett & wife v. Hawpe's ex'or, 25 Gratt. 481; Darnall & wife v. Smith's adm'r & als., 26 Gratt. 878. These cases have been repeatedly referred to with approbation in subsequent decisions by this court. See Leake, trustee, v. Benson & als., 29 Gratt. 153; Bank of Greensboro' v. Chambers & others, 30 Gratt. 202, 209; Justis v. English & als., Idem, 565, 579; Harshberger's adm'r & others v. Alger & wife & als., 3 Va. Law Journal, 78, 85; 31 Gratt. 52.
The court is therefore further of opinion, that Mrs. Pamplin, by executing the two bonds in the proceedings uentioned must be presumed to have intended to bind her separate estate aforesaid for the payment of said bonds, and as there is nothing to indicate that she intended the obligations to be confined to a part only of said estate, she must be taken to have intended to bind the whole. The fact, that the bond to the appellant Garland, the sum of money therein specified is expressed as " being in part for the purchase of the land and buildings thereon (mills, & c.) at the Gulf Ford, purchased, & c., does not imply an intention to charge that land only, The language was used merely to express the consideration of the bond. There are no extrinsic facts and circumstances sufficient to show, that the liability of that land only was in contemplation of the parties in the execution of the bond.
It is very possible, that Mrs. Pamplin was under the impression, that her whole estate, the reversion as well as the particular estate which had been settled to her separate use, was at her sole disposal, as if she were a feme sole and that she could validly contract debts upon the faith of it. This would seem probable from the fact, that she sold or attempted to sell a portion of the land absolutely to McDonald and others. But if such misapprehension existed, it could not operate to relieve her estate from liability to the extent of her power to charge it. In delivering judgment in the somewhat noted case of Tullett v. Armstong, 4 Beavan R. 319, 323, Lord Langdale, after stating that the execution of a bond, bill, promisory note or other obligation by a married woman having a separate estate, furnished a conclusive inference of an intention, a clear one, on her part, that her separate estate should be bound, says, " Again, I apprehend it to be clear, that where a married woman having separate estate, but not knowing perfectly the nature of her interest, executes an instrument by which she plainly shows an intention to bind the interest which belongs to her, then, though she may be mistaken as to the extent of the estate vested in her, the law will say that such estate as she may have shall be bound by her own act." The act of limitations relied upon by Mrs. Pamplin in her answer is no bar to the claims asserted against her separate estate. The bonds, though void at law, are valid in equity as evidences against the estate. 2 Perry on Trusts (2d ed.), § 663, and authorities there cited.
The bond to Brockman is dated 8th of November, 1863. Mrs. Pamplin in her answer avers that it is a Confederate debt, and Brockman in his petition admits that it is subject to scale.
It results from what has been said, that, in our opinion, the decree of the circuit court is erroneous. It is erroneous in construing the deed of September 6, 1845, as restricting the power of Mrs. Pamplin to bind her separate estate by her contracts and engagements, and in making the claims of her creditors subordinate to her support out of said estate. It is further erroneous in subjecting the Gulf Ford land to sale out and out. It seems that Mrs. Pamplin contracted to sell this land to McDonald and others, retaining the title, and repurchased it from them, after they had erected valuable improvements upon it, and that she gave the bond to Garland, a creditor of McDonald, for the consideration in part of the repurchase. Now, Mrs. Pamplin, being under the disabilities of coverture, had no power to make any contract binding upon her for the sale of the reversion in fee in this land. So far as she undertook to sell the reversion, which was hers, but was no part of her separate estate, the contract was not voidable merely, but absolutely void. She could sell her separate estate, her husband's interest in the land acquired by her under the deed of 1845, and to that extent, and no further, she could and did bind said land; and such interest, but not the fee, was liable for the payment of the Garland debt.
It would seem from Mrs. Pamplin's answer that she would perhaps not object to the sale of her entire estate in the Gulf Ford land as ordered, if she was not disturbed in the use and enjoyment of the residue of her lands; but as a partial reversal of the decree lets the creditors in upon her husband's interest, now hers, in all the lands, we think errors to her prejudice apparent in the decree should be corrected, and this necessitates the total reversal of the decree. If, when the case is remanded, she is still willing that her entire estate in the Gulf Ford land shall be sold and the proceeds paid to Garland on his debt, a consent decree to that effect can be entered by the circuit court, and by uniting with her husband in a deed to the purchaser she can convey a good title in fee simple.
If the sale has already been made under the decree, and it was made after six months from the date of said decree, and such sale has been confirmed, the rights of the parties are fixed by the statute. Code of 1873, ch. 174, § 11.
The decree of the circuit court will be reversed and the cause remanded, with directions to order an account to be taken of the separate estate of Mrs. Pamplin, and as the bill in the case is in behalf of all the creditors of Mrs. Pamplin, an account of all debts and claims for which said separate estate is liable, including the debts of the appellant Garland and Willis A. Brockman, scaling the debt of the latter to its true value, and when said debts have been ascertained, to proceed to subject said separate estate to the payment of the same, and further proceed to final decree, in conformity with the principles hereinbefore declared.
Though Judges Moncure and Anderson were absent when the opinion was delivered, they had concurred in the decree which was to be made.
The decree was as follows:
This day came again the parties by their counsel, and the court, having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that all of the estate, right, title and interest of John H. Pamplin in the lands of his wife in the bill and proceedings mentioned, was, by the deed of the 6th of September, 1845, conveyed to the trustees therein named in trust for the benefit of the appellee, Martha L. Pamplin, the wife of the said John H. Pamplin, and that the said Martha L. Pamplin, under and by virtue of said deed, acquired, in equity, a separate estate in her husband's said estate and interest so conveyed as aforesaid, distinct from her legal estate in fee in said lands and which did not merge in said legal estate.
The court is further of opinion that the said Martha L. Pamplin, by the provisions of said deed and upon the well settled principles of equity, was invested with full power to use, enjoy, control, alien and dispose of her said separate estate in like manner and to the like extent as if she were a feme sole, and as incident to this absolute power of alienation she had the right and power to charge and incumber said separate estate with the payment of debts, if she chose to do so.
The court is further of opinion that the said Martha L. Pamplin, by executing the bond to the appellant Samuel M. Garland, and the bond to Willis A. Brockman, in the proceedings mentioned, must be presumed to have intended thereby to charge her said separate estate with the payment of said bonds, and the said separate estate is therefore in equity liable for such payment; but said liability extends only to said separate estate in the interest of her husband acquired under the deed aforesaid, and not to the legal estate in fee of said Martha L. Pamplin in said lands, which legal estate is distinct from said separate estate and could not be charged by the mere execution of said bonds with the payment thereof, by reason of her disabilities of coverture.
The court is therefore of opinion that the said decree of the circuit court of Nelson county is erroneous in construeing the deed of September 6th, 1845, as restricting the power of said Martha L. Pamplin to bind her separate estate by her contracts and engagements, and in making the claims of her creditors subordinate to her support out of said estate; and that said decree is further erroneous in subjecting the Gulf Ford land to sale out and out. It seems that the said Martha L. Pamplin contracted to sell this land to McDonald and others, retaining the title, and repurchased it from them, after they had erected valuable buildings upon it, and that she gave the bond before mentioned to the appellant Garland, a creditor of McDonald, for the consideration in part of the repurchase. Being under the disability of coverture, she had no power to make any contract binding upon her for the sale of the fee in this land. So far as she undertook to sell the fee, which was hers, but no part of her separate estate, the contract was not voidable merely, but absolutely void. She could make a valid contract for the sale of her separate estate, her husband's interest in the subject acquired under the deed of 1845, and to that extent, and no further, she could and did bind said land; and such interest, but not the fee, was subject to sale for the payment of the Garland bond.
Therefore, it is decreed and ordered that the said decree be reversed and annulled, and that the appellant recover against the appellee, Martha L. Pamplin, to be levied of her said separate estate, his costs by him expended in the prosecution of his appeal aforesaid here. And this cause is remanded to the said circuit court with directions to order accounts to be taken of the separate estate aforesaid, and of all debts and claims for which said estate is liable according to the principles hereinbefore declared, including the debts aforesaid of the appellant Garland, and Willis A. Brockman, scaling the latter to its true value, if ascertained to be a Confederate debt, and when said debts have been established to proceed to subject said separate estate to the payment of the same; and further to proceed to final decree in conformity with the principles aforesaid and the opinion hereinbefore expressed.
Which is ordered to be certified to the said circuit court of Nelson county.
DECREE REVERSED.