Opinion
December Term, 1834.
As all the acquisitions of a feme covert made by her own act during the coverture inure to her husband, a bill seeking to enforce the execution of an agreement for the purchase of property, and a conveyance of it to the sole and separate use of a married woman, her husband not joining in it, will be dismissed.
THE case made by the bill was that Thomas Lanier, the husband of the plaintiff, having become insolvent and his property being about to be sold under execution, the defendant agreed with the plaintiff to purchase a certain share for her separate use, and upon being secured in the purchase-money to convey it to a trustee for such use. That the purchase was made according to the agreement, and that (40) the defendant, upon being tendered the amount of his purchase and requested to convey according to his agreement, had refused to do so.
Devereux for plaintiff.
Badger and W. H. Haywood for defendant.
The bill was filed during the life of Lanier, the husband of the plaintiff, she suing by her next friend, and sought to enforce the agreement, but the husband was not a party. The defendant denied the agreement charged, and relied on the coverture of the plaintiff as a defense.
Upon the proofs, the agreement stated in the bill was fully made out. It appeared also that a brother of the plaintiff's at the sale of her husband's slaves had purchased a number of them, and left them with her for her use.
The Court is of opinion that such a bill cannot be sustained. The contracts of a wife during coverture are void as to herself, and inure to the benefit of the husband. She cannot acquire property by her own earnings or upon her own engagement as a purchaser distinct from her husband. This is the general rule in equity as well as at law. But it is said that in equity she may have a separate estate, and that in respect to that she is regarded as a feme sole. Where she gets an estate to her separate use by devise or donation, in which cases the owner may give to any purposes and upon any conditions that to him may seem meet, she is as to such estate thus vested a feme sole. But by a bargain of her own, and especially by a mere executory contract, she cannot constitute herself a feme sole. If she could, the marital rights of the husband would virtually cease to exist in equity. It is said in this case that she had other separate estate which was purchased by a brother to her separate use; and that in respect of that, and on the credit of it, she might make the contract that is the subject of this suit. After the creation of a separate estate the wife may bind it, and herself in respect of it, by a contract touching or encumbering it. But such an estate does not give her the power of contracting generally any more than she had before; that is to say, upon (41) any subject but the separate estate. There is no proof, however, that even the articles purchased by the brother are in a situation to be viewed as the wife's separate property. The brother seems to have purchased and merely allowed the use to his sister of his property, as his, by way of charity. But if there be actually a conveyance it can make no difference, because this contract had no connection with that estate, and was not entered into upon the faith of it, and, moreover, because the bill does not allege any such separate estate. The bill is founded solely upon the idea that this slave is her separate property, and that she is constituted a feme sole as to it, by force of the contract with the defendant above. If it were the law, then every contract of the wife would be valid in equity, both as against the person with whom she contracts and against her husband, which cannot be pretended. She cannot make an executory agreement, and thereby constitute herself a feme sole. The interest is in the husband and not in her.
The bill must therefore be dismissed, but without costs. The evidence satisfies us that the defendant has deceived the plaintiff and her friends. He did agree to purchase for her, and under the general belief of that fact the creditors of the husband allowed him to purchase at or under value, and he now appropriates the profit to himself. He has therefore no merits which entitle him to recover costs.
PER CURIAM. Bill dismissed.