Opinion
12-01-1876
HERMAN LEVI v. E. EARL, FREDERICK STRAEHLE AND ROSINE STRAEHLE, WIFE OF FREDERICK STRAEHLE.
Herman M. Moos and John M. Pattison, for plaintiff in error A. Taft & Sons, for Rosina Straehle
1. By the act concerning the rights of married women, passed April 3, 1861 (S. & S. 389), as amended March 23, 1866 (S. & S. 391), the general estate, as well as the separate estate, of a married woman, belonging to her at her marriage, and all her estate, legal and equitable, which may come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, together with the rents and issues thereof, becomes her separate property and under her control, free from the marital rights of the husband at common law over the same. 2. By these statutes the wife is authorized to make contracts, in her own name, for labor and materials for improving, repairing, and cultivating her separate estate, as defined by this statute, and for leasing the same for a term not exceeding three years. Upon such contracts the wife is liable to an action at law, and to a judgment and execution, as a feme sole, but all her other engagements, debts, or obligations are void at common law, the same as before the passage of said acts. 3. By these statutes the marital rights of the husband were divested as to the wife's general estate, and the wife was invested with the control of the same, and could bind it, not only by the contracts which she was authorized to make in her own name, but to the same extent as she could charge her separate estate in equity, before said statutes were passed. 4. The power of a court of equity to charge the separate estate of a married woman, as it existed and was exercised prior to said statutes, still exists, not only as to such separate property, but also as to her separate property as defined by such statutes, except as to such contracts as she is authorized to make in her own name, upon which a remedy at law is given by said statutes. 5. The grounds upon which a court of equity charges a married woman's separate estate, for her general engagements, in the absence of a valid contract binding the same, or of an express charge thereon, is not because her contracts have any validity, nor by way of appointment, or charge, but because the circumstances are such that equity decrees it to be just that they should be paid out of such estate. 6. Something more than merely incurring the obligation, which the law would create if she were a single woman, is necessary to affect the estate of a married woman, and, in order to bind the separate estate by a general engagement, it should appear that it was made by her with reference to and upon the faith and credit of that estate, under such circumstances as makes it equitable that such charge should be enforced. 7. An answer of a married woman, made to an action by the indorser of a promissory note, to charge her separate estate, on her indorsement thereof, which denies that she intended to charge her separate estate, and avers that she indorsed the same through the influence and persuasion of her husband, and not of her own free will, and that she received no part of the money paid for said note, but the same was used for the sole benefit of her husband, states a good defense to such action. 8. The indorsement by a married woman of a promissory note, solely for the accommodation of her husband and as surety thereon, in order to enable him to dispose of the same, is, of itself, not sufficient to warrant a court of equity in presuming that she intended to charge her separate real estate with the payment of the same.
APPEAL. Reserved in the District Court of Hamilton county.
The plaintiff averred in his petition, among other facts:
First. That he is the holder of a note executed by one E. Earl, to the order of A. K. McMurrey; that said note is indorsed by A. K. McMurrey, by Frederick Straehle, and by Rosine Straehle.
Second. That said note was duly presented for payment; duly protested; notice duly given to said Rosine Straehle of its non-payment on the same evening.
Third. That the said Rosine Straehle is the wife of Frederick Straehle, a prior indorser, and also one of the defendants.
Fourth. That the said Rosine Straehle was then, and still is, the owner of a large estate of real property in her own right and as her separate property, worth about $12,000, which is described, and that she intended and did charge the same with the payment of said note in default of payment by the other defendants.
The prayer is for a personal judgment against Earl as maker, and Frederick Straehle, the husband, as an indorser. As against Rosine Straehle, the wife, the relief asked is that the amount be found due, and a decree be made; that the same be paid out of the separate estate of said Rosine, described in the petition, or out of such other property as she may be found to possess in her own name, and for such other and further relief as the nature of the case will require.
Frederick and Rosine Straehle were served with summons, but as to the defendant Earl, the summons was returned not found.
Frederick made no defense, and the printed record does not show what became of the action as to him, although it is stated in argument that judgment by default was taken against him.
Rosine answered separately as follows:
"Separate answer of Rosine Straehle, one of the defendants, by leave of court for Separate answer to the petition.
"She is the wife of Frederick Straehle, one of the defendants.
"She admits having written her name after that of her said husband upon the back of the note in the petition set forth, but denies that she intended to or did thereby charge her separate property in the petition set forth, or any other of her separate property, with the payment of said note in default of the payment by the other defendants, or that she is liable thereon as indorser. And this defendant avers that she wrote her name upon the back of said note through the influence and persuasion of said husband, Frederick Straehle, and not of her own free will and accord; that the money thereon was paid to her said husband, and by him used entirely for the payment of his own separate debts, and that no part thereof was used by this defendant, or for the benefit of her separate estate; wherefore, the defendant, Rosine Straehle, asks to be hence dismissed with her costs."
A demurrer to this answer was overruled, and exception noted. A reply was then filed, putting in issue the material averments of the answer. After a trial and judgment for said Rosine, the plaintiff appealed to the district court, where the case was reserved for decision in this court upon a special finding of the facts, as follows:
"1. That plaintiff is the holder and owner of the promissory note set forth in his petition, upon which there are no credits, and of which, with all indorsements, the following is a copy, to wit: [First mortgage note for purchase-money. Mortgage properly stamped.] [$1,000.] May 5, 1871.
One year after date I promise to pay to the order of A. K. McMurrey one thousand dollars, at Fourth National Bank, Cincinnati, value received, with eight per cent. interest.
(Signed,) E. EARL.
Indorsed: "My interest assigned without recourse.
"A. K. MCMURREY.
July 24, 1871.
"FREDERICK STRAEHLE, "ROSINE STRAEHLE."
"2. That said promissory note was made by E. Earl to the order of A. K. McMurrey, and was secured by mortgage of real estate; and prior to July, A. D. 1871, in consideration of lands of the defendant, Frederick Straehle, conveyed by him to A. K. McMurrey, was indorsed without recourse, and transferred by said McMurrey to said defendant.
"3. That in July, A. D. 1871, said Frederick Straehle, being thus the holder of said promissory note, indorsed said note and transferred the same to the plaintiff for value paid him by the plaintiff; and at the time, before transfer to the plaintiff or payment of value by him, and as the condition of such payment, the defendant, Rosine Straehle, wife of said Frederick Straehle, signed her name also upon the back of the note after the name of her said husband.
"4. That said promissory note was indorsed by Frederick Straehle, and the signature of Rosine Straehle made thereon, and said note transferred to the plaintiff at the city of Cincinnati, Ohio, where he and said Frederick Straehle and Rosine Straehle resided at the time, she living with her husband, and where said Rosine Straehle, as a business of her own, was keeping a beer-saloon, and also owned, under deed of conveyance to her in fee-simple, made September 8, 1869, by Adam Steinkoenig, certain real estate in said city, then of the value of twelve thousand dollars, and known as lots Nos. 139, 140, 141, and 142 of Burnet and Reeder's subdivision of lots in Mt. Auburn, Hamilton county, Ohio.
"5. That with the fact of such ownership of real estate by Rosine Straehle, the plaintiff had made himself acquainted before taking said promissory note, and upon the strength of her said ownership of real estate purchased said note, and without her signature thereon would not have done so; but the negotiation for the purchase was conducted by the plaintiff with Frederick Straehle, and the money upon said purchase was paid by the plaintiff to him without any part thereof going to Rosine Straehle or to benefit any property of hers, and without communication between her and the plaintiff about or concerning said note or signature, other than his words, 'that if she would sign, her husband could have the money.'
"6. That excepting the inducement last named, to indorse the note so that her husband might negotiate it and obtain the money, no influence was exerted over Rosine Straehle by her husband, in or about the indorsement of her signature, nor was any consideration received by her therefor.
"7. That said note is due and unpaid, nor has any payment whatever been made thereon; and that it was, on the day it became due (that is, the 8th day of May, 1872), presented by the plaintiff for payment at the Fourth National Bank of Cincinnati, at the close of banking hours, and payment demanded, which was refused, of all which the said Frederick Straehle and Rosine Straehle were severally notified by the plaintiff the same day by written notices, delivered to each in person at the hands of agent of plaintiff, describing said note, setting forth the time, place, and manner of demand of payment and refusal to pay, and informing said Frederick Straehle and Rosine Straehle severally, that plaintiff would look to them for payment.
"And thereupon the court, coming to the question of law, whether, upon the facts as found, the real estate owned by Rosine Straehle as aforesaid, may be subjected to the payment of said promissory note, or whether any relief may be had against her or said estate, and being of the opinion that said question is important and difficult, upon motion of defendant's counsel it is therefore ordered that the same be, and hereby is, reserved to the Supreme Court of Ohio for its decision."
Herman M. Moos and John M. Pattison, for plaintiff in error:
The indorser of a promissory note can not be permitted by his own testimony to invalidate it. Bank of U. S. v. Dunn, 6 Pet. 51; Renner v. Bank of Columbia, 9 Wheat. 587; Hoare v. Graham, 3 Camp. 56; 2 Stra. 955; 2 Camp. 204; 4 Camp. 127-217; Skinner, 454; 1 Gow. 74; 8 Taunt. 92; 1 Chitty, 661; 7 Mass. 238; 3 Dall. 415; 2 Phillips on Ev. 534 (5 Am. ed.); Ib. 539, 645, 651; 3 Starkie on Ev. 1004, 1008.
Nor will it be of any avail to Rosine Straehle to aver that she indorsed the note through the influence and persuasion of her husband, and that she did not sign it of her own free will and accord. Shaw v. Thackray, 17 Jur. 1045; 1 Sm. & G. 537; Lightfoot v. Heron, 3 Y. & C. 586; Duncan v. Scott, 1 Camp. 100; Biffin v. Bigorell, 7 H. & N. 877; 8 Jur. N. S. 647; 31 L. J. Exch. 189; 10 W. R. 322; 6 L. T. N. S. 248; Hardy v. Van Harlingen, 7 Ohio St. 216; Hulme v. Tenant, 1 ro. BCh. 16.
II. Has Rosine Straehle charged in equity her separate property with the payment of said note?
We claim that she has.
The following propositions, advanced in support of this claim, are assumed to be correct in principle, and are believed to be so held by the highest and ablest authorities in England and America:
1. A married woman, having a separate property, charges the same by entering into a contract for the benefit of said estate, or by creating any other debt or responsibility for herself or a third party, when from her own acts or from surrounding circumstances the intention of such a charge can be inferred.
2. The signing by her of a bond, bill of exchange, or note, either as maker, indorser, or surety, shows such an intent.
3. Having thus signed an instrument, containing an obligation to pay money, the charge is complete and valid in equity, though no consideration passed to her, or was for the benefit of her separate estate, but went to her husband for the payment of his individual debts.
4. The statutes of Ohio concerning the rights and liabilities of married women do not, nor were intended to, abridge the powers, restrain or limit the jurisdiction of courts of equity, in relation to the separate estate of married women. These statutes were intended to modify the rigid rules of common law, and to enlarge the rights of and remedies against married women in courts of law.
5. In charging the separate estate of a married woman with the payment of a debt created by her, it is not necessary, at least in the State of Ohio, that the intention must be written upon the note, etc., as the so writing it upon such instrument is simply one of the modes of evidencing the charge, but is not the charge itself. Our statutes do not require that such charge must be evidenced in this particular manner. 20 Ohio St. 389.
6. A married woman, doing business in her own name and owning a separate estate, can only then not have intended to charge her separate property with the payment of a pecuniary obligation incurred when she did not know, or the law will permit her to say she did not know, that she was creating a charge, or when the circumstances of the case are such as to lead to the inference that a something else or some other person was intended to be charged with the obligation. And, in the absence of such an inference, the charge upon her separate property is conclusive.
7. A married woman, having a separate estate, who has been persuaded or otherwise induced by the husband to sign a note as indorser, maker, or surety, can not avoid the charge upon her property on account of such persuasion or inducement, such fact being unknown to the holder, no more so than she could avoid a deed by which she conveyed her legal title against her free will, had she signed such deed with ever so much reluctance, but unknown to the purchaser. Even then, where the statutes require that it should be done after a separate examination and by her free will, the innocent purchaser would be protected, and he could stand upon his deed and his own innocence. 3 Washb. R. Prop. 299, sec. 66; Baldwin v. Snowden, 11 Ohio St. 203.
8. In Ohio, separate estates in married women, to a great extent, is a thing of comparatively recent origin. Formerly the estates of married women were general estates, almost exclusively. And in general estates the husband had the possession and control of the property—a freehold estate in the wife's lands. She not having the property in possession, nor any control over it, could not charge it by her contracts. Clark v. Clark, 20 Ohio St. 128, and cases there cited in brief, p. 130. Also Logan v. Thrift, 20 Ohio St. 62.
Formerly, the character of separate estates could only be imprinted by the terms of the deed or will creating it, specifying that the property should be held by the wife to her sole and separate use, free from the control of the husband, and independent of his marital rights. Glidden v. Taylor, 16 Ohio St. 517, and notes to Hulme v. Tenant, 1 Ld. Cas. Eq. 411, 412.
The act of 1866 (S. & S. 391), by legislation, makes all such real estate thereafter "belonging to any woman at her marriage, or which may have come to her during coverture by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, together with all rents and issues thereof," her separate property and under her control. The act referred to expressly confers upon married women the right to make certain contracts. These are legal contracts which she may make, personally, without her husband, and bind herself personally, both in equity and in law. In these cases, she may sue and be sued alone, without her husband, and a personal judgment may be rendered for or against her the same as if she were a feme sole. Ohio L. of 1870, p. 111. But this section is in no manner restrictive upon that other class of cases where a married woman, having a separate estate, simply by her general engagements binds or charges her separate estate in equity only, but does not render herself liable to a personal judgment, enforcible at law by execution. Phillips v. Graves, 20 Ohio St. 371; Hulme v. Tenant, above cited.
But independent of any statutes enlarging the rights and liabilities of married women at law, or in the absence of all statutes in reference thereto, and with the rigid rules of common law unmodified, still in force in Ohio, we claim, upon the authorities hereinafter cited, that we are entitled in equity, upon the case made, to a decree against the property of RosineStraehle. Story's Eq. Jur., secs. 1397, 1399, 1400, 1401; see Mr. Belt's note (3) to Hulme v. Tenant, 1 Bro. Ch. 20; Sockett v. Wray, 4 Ib. 485; Nantes v. Corrock, 9 Ves. 189; Jones v. Harris, 9 Ib. 496, 497; Stewart v. Lord Kirkwall, 3 Madd. 387; Gardner v. Gardner, 22 Wend. 526; Owens v. Dickinson, 1 Cr. & Ph. 48; particularly, Francis v. Wizzell, 1 Madd. 258; Aylett v. Ashton, 1 Myl. & Cr. 105-111; Roper on Hus. & W. 235, 238; Hulme v. Tenant, 1 Bro. Ch. 16; Peacock v. Monk, 2 Ves. 193; Norton v. Turvill, 2 P. Will. 144; Lilia v. Airey, 1 Ves., Jr., 277, 278; Mans. Ch. in Nurse v. Craig, 5 Bos. & Pull. 162, 163; Angell v. Hadden, 2 Meriv. 163; Stanford v. Marshall, 2 Atk. 68; Master v. Tuller, 4 Bro. Ch. 19; Stuart v. Kirkwall, 3 Madd. 387; Field v. Soule, 4 Russ. 112; Clancey on M. W. 331, 346; Phillips v. Graves, 20 Ohio St. 382, and cases there cited; Corn Ex. Ins. Co. v. Babcock, 42 N. Y. 613; Hinckley v. Smith, 51 Ib. 24; Ib. 136; 55 N. Y. 247; M. B. & M. Co. v. Thompson, 58 N. Y. 80; Huff v. Wright, 39 Ga. 41; Cheever v. Wilson, 9 Wall. 108; Kimm v. Weippert, 46 Mo. 532; Sprague v. Tyson, 44 Ala. 338; Miller v. Brown, 47 Mo. 504; Walker v. Coover, 65 Penn. St. 430; Mitchell v. Smith, 32 Iowa, 484; Hall v. Eccleston, 37 Md. 510.
In determining whether the separate estate of a married woman is liable for goods furnished her at her request, the practical question is, not whether she expressly designed to charge her separate property, but whether she intended to contract a debt of her own; for if she did, the law, and not her ideas about her property, fixes the liability. Miller v. Brown, 47 Mo. 504; Schafroth v. Ambs, 46 Mo. 114; Nurra v. Giohan, 45 Ala. 370; Lincoln v. Rowe, 51 Mo. 571; Wicks v. Mitchell, 9 Kan. 80; Siemers v. Kleeburg, 56 Mo. 196; Cord on M. W., secs. 321, 327, 356, 357, 358; 7 B. Mon. 293; 16 B. Mon. 376; Reeves' Dom. Rel. 236, 242, 244, 260, 268, 270; Clancy on H. and W. 346; 2 Bright, 244, 258; Schouler's Dom. Rel. star pages 221, 223, 224, 225, 230; 1 Bishop on M. W. secs., 862, 873, 876; Deering v. Boyle, 3 Kan. 525; Todd v. Lee, 15 Wis. 365.
We may be permitted to ask for the reason why a court of equity should refuse the plaintiff the relief he asks against this defendant, when the statutes of our state have so modified the common law of Ohio that it is much safer to say the common law, with reference to the rights and liabilities of married women, is not at all in force here, than to say that a court of equity must be blind to the fact that the present condition of married women in society requires that their responsibilities are to be as great as the rights that have been secured to them. We claim that under the statutes of Ohio now in force, we would be entitled to recover at law.
Sections one and three of an act concerning the rights and liabilities of married women, as amended March 23, 1866 (63 Ohio L. 47, or S. & S. 391); section twenty-eight of the code, as amended April 18, 1870 (67 Ohio L. 111); section two of an act concerning the rights and liabilities of married women, as amended March 30, 1871 (68 Ohio L. 48); and section twenty-eight of the code, as amended March 30, 1874.
A. Taft & Sons, for Rosina Straehle:
Neither Rosina Straehle nor her separate estate are charged at law with the payment of the plaintiff's claim.
The common law of England and the statutes passed there before the emigration of our ancestors to America, have become, by adoption, the law of this country in civil cases, so far as they are not inconsistent with our institutions. Patterson v. Winn, 5 Pet. 241; 1 Baldw. 559; Commonwealth v. Leach, 1 Mass. 61; Commonwealth v. Knowlton, 2 Mass. 535; Pearce v. Atwood, 13 Mass. 354; Morris v. Vanderen, 1 Dall. 67; Respublica v. Mesca, 1 Dall. 75; Sackett v. Sackett, 8 Pick. (Mass.) 309; Colley v. Merrill, 6 Me. 55; Boynton v. Rees, 9 Pick. (Mass.) 532; Sibley v. Williams, 3 Gill & J. (Md.) 62; Pollard v. Hagan, 3 How. 212; Carter v. Balfour, 19 Ala. 814; State v. Cawood, 2 Stew. (Ala.) 362; State v. Cummings, 33 Conn. 260; Goodwin v. Thompson, 2 Greene (Iowa), 329; O'Ferrall v. Simplott, 4 Iowa, 381; State v. Buchanan, 5 Har. & J. (Md.) 358; Noonan v. State, 9 Miss. 562; Powell v. Brandon, 24 Miss. 343; Hamilton v. Kneeland, 1 Nev. 40; Bogardus v. Trinity Church, 4 Paige (N. Y.), 178, 15 Wend. 111; Coburn v. Harvey, 18 Wis. 147; also Barlow v. Lambert, 28 Ala. 704; Wagner v. Bissell, 3 Iowa, 396; Stout v. Keyes, 2 Dougl. (Mich.) 184; Morgan v. King, 30 Bart. (N. Y.) 9; United States v. Coolidge, 1 Gall. 489; 1 Baldwin, 558; 1 Ohio, 245; 2 Ohio St. 387; 3 Ohio St. 201.
In the absence of enactment by our state legislature in reference thereto, the legal rights and liabilities of married women in this state are determined by the rules of the common law. See Quigley v. Graham, 18 Ohio St. 42; Logan v. Thrift, 20 Ohio St. 62; Clark v. Clark, 20 Ohio St. 128.
The legal rights and liabilities of married women at the present day in our state, therefore, are their rights and liabilities under the common law, modified by the provisions of our statutes. 1 Bright's Husb. and Wife, 1, 2, 34, 36, 112, 116; 1 Parsons on R. and B. 78, 87; Waldin v. Waldin, 7 Ohio St. 30; Ramsdall v. Craighill, 9 Ohio, 198; Story on Prom. Notes, sec. 124; Smiley v. Smiley, 18 Ohio St. 543; 2 Bright's Husb. and Wife, 37-39; Herrington v. Herrington, 1 Miss. 322; Scott v. Purcell, 7 Blackf. 66; Daniel v. Rose, 1 Nott & M. 33; Patton v. Stewart, 19 Ind. 233; Montague v. Carneal, 1 Marsh. (Ky.) 351; 10 Vt. 9; 1 T. B. Mon. 326; Parsons on Con. 250, 251; 1 Grant (Pa. Cas.), 465; Met. on Con. 82, 83; Schouler's Dom. Rel. 74.
As to how far these property rights of married women and their disabilities—particularly their disability to contract—as they prevail at common law, have been affected by legislative enactment in our state, see act of February 22, 1831 (1 S. & C. 461); act of May 3, 1852 (2 S. & C. 1615, 1616), as amended, 71 Ohio Laws, 48, and 72 Ohio Laws, 3. Allen v. Little, 5 Ohio, 65; act of April, 3, 1861; 58 Ohio Laws, 54, secs. 1 and 2; act of March 23, 1866 (S. & S. 391); act of April 18, 1870 (67 Ohio Laws, 111.)
The amendatory act of March 30, 1874, can not affect the rights of the parties in this case, 1st, because that act is not and can not be retroactive. Logan v. Thrift, 20 Ohio St. 62; Jenney v. Gray, 5 Ohio St. 48; White v. White, 5 Barb. 474; Glidden v. Taylor, 16 Ohio St. 518; Clark v. Clark, 20 Ohio St. 128; 18 Ohio St. 42; 2d, Because the act of March 30, 1874, does not affect the liability of married women. Jenz v. Gugel, 26 Ohio St. 527; Pond v. Carpenter, 12 Minn. 430; 15 Miss. 64.
Under the statutes of Ohio, a married woman can make no valid contract, except for labor and materials for improving, repairing and cultivating her separate real estate, and for the lease of the same for a period not exceeding three years. McFadden v. Crumpler, 20 Tex. 374; Selph v. Howland, 23 Miss. 264; Frost v. Doyle, 15 Miss. 68; 15 Miss. 77; Sessions v. Bacon, 23 Miss. 272; Armstrong v. Stovall, 26 Ind. 275; Waygood v. Harris, 10 Ala. 291.
If the plaintiff's claim is a legal claim, then it is not such a claim as a court of equity, doing equity, will charge Rosina Strachle's separate estate with the payment of.
Williard v. Eastham, 15 Gray, 334; 25 How. Pr. 240; Ludlow v. Simond, 2 Cai. Cas. in Error, 1; Daniel v. Robinson, 18 B. Mon. 301; Williamson v. Williamson, 18 B. Mon. 385; Pell v. Cole, 2 Met. (Ky.) 252; Stacker v. Whitlock, 3 Met. (Ky.) 244; Yale v. Dederer, 22 N. Y. 460.
Courts of equity, as well as courts of law, have uniformly recognized the disability of married women to contract generally. Worthington v. Young, 6 Ohio, 314; Young v. Miller, 10 Ohio, 91; Hunt v. Rousmanier, 1 Story's Eq. 129; Miller v. Hine, 13 Ohio State, 565; 2 Roper on Hus. and Wife, 236; 2 Vesey, Jr., 138; 10 B. Mon. 321; Bowman v. Graves, 23 Miss. 280; Norris v. Lantz, 18 Md. 260; Rose v. Bell, 38 Barb. 25; Vance v. Wells, 6 Ala. 737; Howe v. Wilder, 34 Me. 566; Bauer v. Bauer, 40 Mo. 61; Wilson v. Cheshire, 1 McCord, 233; Goodhue v. Barnwell, Rice, 198; 15 Barb. 28; Dorrance v. Scott, 3 Whart. 309; 3 Greenl. 50; Lane v. McKeen, 15 Me. 304; Butler v. Buckingham, 5 Day, 492; Minaley v. White, 3 Met. (Ky.) 384; Harris v. Taylor, 3 Sneed, 536; 1 Disney, 504; Corning v. Lewis, 36 How. Pr. 505; 1 Milne & Craig, 105; 1 Madd. 259; Addison on Con. 131; Stretton v. Burnach, 1 Bing (N. C.) 139; Barden v. Keverberg, 2 M. & W. 61; Marsh v. Hutchinson, 2 B. & P. 226; Williamson v. Danes, 9 Bing. 292; 2 Kent's Com. (12th ed.), 168, 169, 170; 2 Bishop on M. W. sec. 232; 58 Penn. St. 493; Major v. Symmes, 19 Ind. 117; Rogers v. Ward, 8 Allen, 387; Ames v. Foster, 3 Allen, 541; Bailey v. Pearson, 29 N. H. 77; Pentz v. Simonson, 13 N. J. Eq. 232; 7 Paige, 112; 22 Wend. 526; Dickerman v. Abrahams, 21 Bart. 551; Taylor v. Glenny, 22 How Pr. 240; Mattier v. Lillie, 24 How Pr. 264; Corning v. Lewis, 36 Howe Pr. 425; 3 Iredill Eq. 414; Knox v. Jordan, 5 Jones Eq. 175; Hough v. Jones, 32 Penn. St. 432; Ramberger v. Ingram, 38 Penn. St. 146; Magwood v. Johnston, 1 Hill Ch. 228; 11 Tex. 142; 27 Tex. 255; Draughon v. Ryan, 16 La. Ann. 309; Chapman v. Foster, 6 Allen, 136; Stewart v. Jenkinson, 6 Allen, 300; Williams v. Carroll, 2 Hill, 438; Sexton v. Fleet, 2 Hill, 477; Litton v. Baldwin, 8 Hamp. 209; Heath v. Van Cott, 9 Wis. 516; Rogers v. Ward, 8 Allen, 387; Owen v. Cawley, 42 Barb. 105; 36 N. Y. 600; Moore v. McMullen, 23 Ind. 78; Story's Eq. Jur. (10th ed.) secs. 1401 d, and 1401 f, 1401 i; 14 Ohio St. 419; Phillips v. Graves, 20 Ohio St. 371; 21 Barb. 286; 7 Paige, 9; 20 Wend. 570; White v. McNett, 33 N. Y. 371; 41 Barb. 109; 43 Barb. 124; 39 Barb. 194; 36 Barb. 52; 31 Barb. 314; Ledeliey v. Powers, 25 How. Pr. 240; Manchester v. Sabler, 47 Barb. 155; Goodall v. McAdam, 14 How. Pr. 385; Williard v. Eastmam, 15 Gray (Mass.) 328; Yale v. Dederer, 22 N. Y. 450.
Plaintiff did not rely upon the indorsement of Rosine Straehle. If he had done so, he would not and could not have taken judgment against her husband. 1 White & Tudor's Leading Cases in Eq. 763; Tuttle v. Hoag, 46 Mo. 38, 43; Taylor v. Shelton, 30 Conn. 122; Sawyer v. Cutting, 33 Vt. 486; Carter v. Howard, 39 Vt. 106; Weisen v. Lowenthal, 31 Md. 413; Metcalf v. Shaw, 3 Campbell, 122. And having taken judgment against the husband, he can not proceed against the separate estate of the wife. Palen v. Lent, 5 Bosw. 713; 21 Barb. 286; 18 N. Y. 265; 22 N. Y. 450; 15 Gray, 328; 46 Mo. 532; 6 C. E. Green, 269; 5 Ib. 109; 2 Sandf. 287; 17 Iowa, 393; 52 Barb. 125; 41 Barb. 109; 26 Ind. 233.
JOHNSON, J. The demurrer to the answer and the special findings of the court involve the same questions, and will be considered together.
The facts show that the wife was not an original party to the note, but was simply an accommodation indorser, either for her husband or with him, to enable him to dispose of it to the plaintiff. She entered into no contract or engagement, either with plaintiff or her husband, concerning her liability to pay the note, other than arises out of the single act of writing her name under that of her husband, knowing that the plaintiff had promised to purchase it if she would do so.
She had no communication with the plaintiff, except being told that if she would indorse, her husband could get the money, and did not hold herself out as acting on the faith of her separate estate, nor did she express or entertain, so far as appears, any intention to charge her separate estate.
She owned the lots in fee, but whether they were separate property, by virtue of the acts of 1861 and 1866, or such as would have been so regarded in a court of equity without those statutes, does not appear. The plaintiff dealt on the faith of this property, but without any intention expressed or evinced by her to charge it with this obligation, other than may be implied from the fact of writing her name as indorser.
The transaction was exclusively with the husband, and for his sole benefit.
Authorities need not be cited to show that this indorsement was of no validity against her personally.
By the commercial law the contract of an indorser of a note is to pay if the maker does not, and the claim is, that inasmuch as the wife is not liable on that contract, equity will imply another contract, which in fact was not made, and under circumstances from which at common law no contract would be implied to make this void obligation, for which she received no benefit or charge on her separate estate.
As this undertaking was utterly void at law, for any purpose, the question may be narrowed down to this: Whether a court of equity will imply an intention to charge the separate estate of a married woman, from the sole fact that she indorsed a note for the accommodation of her husband, and as a surety merely, to enable him to negotiate it, where no such intention was expressed or in fact entertained, and whether equity will specifically enforce such an implied engagement?
Counsel on each side have exhibited much research and ability in the argument of this question, and have materially aided us in our labors.
On the one side, it is said that both reason and authority warrant such implication, inasmuch as the wife is presumed to know that at law her indorsement was not binding on her, and it will be presumed that she did not intend to commit a fraud on the plaintiff, and therefore equity will assume she intended some effect to be given to her act which can only be done by charging the debt on her property.
On the other hand, it is insisted that as she was only a surety, receiving no consideration, she is guilty of no fraud, and there is no equity in creating for her an intention, by legal construction of her act, which she did not in fact have or express; that an intention to charge is an essential element in her engagement, and that while a court of equity will presume such intention from the simple act of incurring the obligation, when the indebtednesss is for the benefit of herself or her separate estate, yet such intention will not be implied from such act where she is surety merely.
It is insisted that equity will not lend its aid beyond the express terms of a contract of suretyship; that their contract is one stricti juris, to which terms will not be annexed by implication.
As preliminary to the main question, it may be stated that Earle, the maker, and Frederick Straehle, an indorser of this note, were both sued at law, and were liable to execution on a judgment at law, and so far as we are advised by the printed record, both are entirely solvent.
If such be the fact, the plaintiff had a plain, adequate, and complete remedy at law, and it may well be doubted whether, in such a case, the plaintiff can seek the aid of a court of equity, for equitable relief, against a subsequent party on the note who is only a surety.
As this point has not been made in argument, we only notice it as affecting the point controverted. This note is secured by a mortgage, and the plaintiff is in equity entitled to foreclosure to pay the debt.
These facts are material, if for no other purpose, as bearing on the question of the wife's intention to charge her separate property.
If the prior parties to this note were solvent, or if it were amply secured by mortgage, or if both were true, we would hardly presume that the plaintiff dealt solely on the credit of the wife's estate, nor that she could have seriously thought of incurring any obligation in equity, when the plaintiff had an adequate remedy at law, at least until her principals were exhausted.
In Yale v. Dederer, 18 N. Y. 265, and in 22 N. Y. 450, where the wife was a surety for her husband, the averment that the husband was insolvent, and that a judgment rendered against him on the note was uncollectable, was an important element of the case.
In Phillips v. Graves, 20 Ohio St. 372, it was averred that the husband, who was no party to the note, was insolvent.
If the question of intent is one of fact, and not of law, to he conclusively presumed from signing the obligation, then the solvency of the prior parties, and the security afforded by the mortgage, were circumstances affecting the question.
Again, as a general rule, an intention to charge will hardly be presumed where the obligation is amply secured otherwise. In such case no wrong is done to the obligee, and it is not necessary, to prevent injustice to him, that equity should presume a charge on the wife's estate.
Returning to the main question, it may be said that the principles of the common law are in full force in Ohio, so far as they are adapted to our circumstances and form of government, and not inconsistent with the letter and spirit of the federal and state constitutions and statutes. Linsey v. Coat, 1 Ohio, 245; Bloom v. Richards, 2 Ohio St. 387; Cleveland, Col. & Cin. R. R. Co. v. Keary, 3 Ohio St. 201.
By that law, and prior to any modification of it by statute, the wife's general property, as distinguished from her seperate estate, came under the absolute control of her husband. Her goods and chattels passed absolutely to him upon marriage: her choses in action became his, if reduced to possession during coverture, and the rents and profits of her lands belonged to him, with the right to control the land as his own while the relation of husband and wife subsisted.
Prior to the recent legislation in Ohio, beginning with the acts of 1861 and 1866, whatever separate estate a wife had was that known only to courts of equity.
All the wife's property, not specially set apart in some way to her sole use, usually by the intervention of a trustee, was called her general property, and as to this, the husband, by the common law, was entitled to control.
The character of separate property, and the wife's power over it, generally depended on the limitations in the instrument by which she was invested with it.
It was created, supported, and protected by courts of chancery. They assumed this control as the special guardians of married women, for its preservation, and their protection.
The court was a shield of protection against the common-law rights of the husband, not a sword to destroy, nor a power to appropriate it to the satisfaction of the husband's demands, and so defeat the very object of its creation.
This estate, whether it arose by virtue of an ante-nuptial contract with her husband, or by gift from him or from a stranger, independent of such contract, was under the special guardianship of the chancellor. At first the intervention of a trustee was thought necessary to support such an estate, but soon it was settled that, for the wife's protection, the husband might be treated as her trustee, and the trust enforced as against him. Tullet v. Armstrong, 1 Beav. 21; Schouler Domestic Relations, chap. 10.
It was an equitable estate, over which courts of law had no control. As to this property, she became a feme sole; she might contract in her own behalf, sue and be sued in her own name, and manage and control the same, subject always to the limitation imposed by the instrument creating the estate.
This estate had its origin in the Roman law, by which, unless the marriage was in a particular way, the husband and wife were distinct persons, and might have separate estates, rights, and interests as regards contracts, debts, and injuries. 1 Spencer Hist. of Eq. Jur. 549.
This learned author says that when the court of chancery thus established that the wife might have a separate estate, it clearly violated the laws of property as between husband and wife, but it accorded with popular feeling and prevailed.
He goes on to add: "After it had been settled that a wife might enjoy separate estate as a feme sole, the laws of property came to be attached to this new estate, and, as part of such law, the power of alienation belonged to the wife. This power; it may be observed, though in anticipation, was found to be destructive of the security intended for such property, and prohibitions against alienation were introduced; the court of chancery here again interfered, and, by another violation of the laws of property, supported the validity of such prohibitions, in order to secure the wife the desired protection against the marital rights."
This restriction on the jus disponendi of the wife was introduced by the court of chancery under its assumed power, "to model and qualify an interest in property which it had itself created, without regard to those rules which the law has established for regulating the enjoyment of property in other eases." Hence, she could not devise her real estate, unless in execution of a power to that effect, nor could she charge her lands beyond the rents and profits.
Having established the separate estate of the wife, it was but just that the court should bind her to the extent of making that estate liable for her debts.
The extent of the power of a married woman to charge her separate estate, as it existed in England and in Ohio prior to our statutes, was directly before the court in the leading case of Hulme v. Tenant (1 Bro. C. C. 16), 1 Equity Ld. Cases, 501.
The cases are there summed up in these words:
"It is not like the case of an infant who is incapable of acting; but, in respect to femes covert, determined cases
seem to go thus far, that the general engagements of the wife shall operate on her personal property, shall apply to the rents and profits of her real estate, and that her trustees shall be obliged to apply personal estate and rents and profits when they arise to the satisfaction of such general engagements; but this court has not used any direct process against the separate estate of the wife, and the manner of coming at the separate property of the wife has been by decree to bind the trustees, as to personal estate in their hands, or rents and profits, according to the exigency of justice or the engagement of the wife to be carried into execution. I know of no case which has gone further than that."
The jus disponendi, from which is drawn the power of a married woman to charge her estate, or rather the power of a court of equity to charge it, was, even in England, far from being absolute as to her lands, as this citation shows.
If it is founded entirely, as all the authorities concede, on the right of the wife to dispose of her separate property, it could certainly go no further than to allow her to make contracts specifically charging this estate; but in England some cases go a step beyond, and charge her general engagements, having no relation to the separate estate.
This anomalous and illogical extension of the principle is justly characterized by Chancellor Kent, when he says (Methodist Church v. Jacques, 3 Johns. Ch. 77): "It is difficult to perceive upon what reasoning or doctrine the bond or parol promises of a feme covert could for a moment be deemed valid. She is incapable of contracting according to the 'common right,' mentioned by Lord Macclesfield; and if investing her with separate property gives her the capacity of a feme sole, it is only when she is directly dealing with that property. The cases do not pretend to give her any of the rights of a feme sole in any other view or for any other purpose."
Accordingly, it was held in Curtis v. Engel, 2 Sand. Ch. 287, that, "To sustain their suit, the plaintiffs must show that the debt was contracted, either for the benefit of the separate estate, or for her own benefit upon the credit of the estate." While the English courts of equity have always, in proper cases, charged the estate of the wife, yet they have never carried the doctrine of jus disponendi as to real estate so far as to destroy the estate by a sale to pay the wife's general engagements. Hence our courts have held that:
"A married woman, unless restrained by the terms of the instrument of settlement, may, by her contract, and without the consent of trustees in whom the legal title may be vested, charge her separate estate, at least to the extent of the rents, issues, and profits thereof, with the cost of reasonable repairs and improvements for the benefit of the estate; and to that extent a mechanic's lien may attach under the statute." Machir v. Burroughs, 14 Ohio St. 419.
In Phillips v. Graves, 20 Ohio St. 382, it is, however, stated that the power of the court over both real and personal estate of the wife extends to enforcing the payment of charges on the separate estate, "through a receiver—1st, by subjecting her personal property; 2d, by sequestering the rents and profits of the realty; and 3d, by a sale of the realty when the same is necessary."
That this power of the court to sell the land, "when the same is necessary," may, and probably does exist in Ohio, under our legislation on the subject, which has converted the wife's general estate into a separate estate, and expressly authorized her to make contracts for the improvement or use of the same; but clearly such power did not exist as to those separate estates consisting of land, as known to courts of equity prior to that legislation. To what extent, therefore, are marital rights, as they existed at common law or in chancery, modified by statute in Ohio?
By the act of February 22, 1831 (1 S. & C. 461), a form is prescribed by which a married woman may convey or incumber any interest of her own by deed or mortgage.
By the act of May 3, 1852 (1 S. & C. 1615), she was authorized to make a valid will.
By an act in the year 1846 (Swan, 712, 713), the husband's interest in his wife's real estate was exempted from the levy to pay his debts during her life or the lives of the heirs of her body, nor could he convey or incumber the same during that time unless she joined in the instrument, executed as required by the act of 1831. The same statute made like provisions, as to the husband's rights, as to the wife's personal estate.
Under this act the common law right of the husband over the lands of his wife, other than her separate estate, to receive and enjoy the rents and profits, was unimpaired. He could manage and control the same as fully as before, but could not convey nor incumber, except his wife joined in a deed duly executed.
By the act of April 3, 1861 (58 Ohio L. 54), the husband was stripped of his marital right over the wife's general estate in lands, and it is declared that:
"SECTION 1. Any estate or interest, legal or equitable, in real property, belonging to any woman at her marriage, or which may have come to her during coverture by conveyance, gift, devise, or inheritance, or by purchase with her separate money or means, shall, together with all rents and issues thereof, be and remain her separate property, and under her sole control; and she may, in her own name, during coverture, lease the same for any period not exceeding three years."
By the amendatory act passed March 23, 1866 (S. & S. 391), the disability of married women to contract is affected in this: That they are enabled to make in their own names during coverture contracts for labor and materials, for improving, repairing, and cultivating their separate real estates, and to lease the same for any period not exceeding three years.
The effect of this legislation, in brief, was to divest the future husband of all right or interest in the wife's land save his curtesy, which is excepted, and to convert all her estate, both legal and equitable, into her separate estate.
This was done by the act of 1861, but that act did not attempt to impose any new liabilities on the wife, nor clothe her with any new power over this estate, other than to lease the land for a term not exceeding three years. This new separate estate is the creature of the statute. The act leaves the wife's power over her separate estate to charge it with her debts, as it stood before; but, by the supplementary act of 1866 (S. & S. 391), this disability is so far removed as to authorize her to control her own property, and to make contracts in her own name, for labor and materials for improving, repairing, and cultivating the same, and to lease the same for a period not exceeding three years. This act clothes the wife with power to contract in her own name in specified cases. It does not attempt to extend or abridge her power, which she already possessed in equity, to charge this separate estate, nor does it specify what acts of the wife amount in equity to such charge.
In that regard the power of the wife is unchanged in cases where she is not thus clothed with legal capacity, so far as these statutes are concerned.
This is manifest by looking at section 3 of the act of 1866 and section 28 of the code of civil procedure.
By section 28 of the code, as it was in force when this action was brought, it is provided:
"SEC. 28. Where a married woman is a party, her husband must be joined with her, except, that when the action concerns her separate property, or is between herself and her husband, she may sue or be sued alone; and in every such case her separate property shall be liable for any judgment rendered therein against her, to the same extent as would the property of her husband were the judgment rendered against him. But in no case shall she be required to prosecute or defend by her next friend."
This act was passed in 1870. By the third section of the act of 1866, it is provided:
"SEC. 3. In any action against husband and wife upon any cause existing against her at their marriage, or upon any tort committed by her during coverture, or upon any
contract made by her concerning her separate property, as provided for in section 1 of this act, the separate property of the wife shall be also liable to be taken for any judgment rendered therein."
Taking these provisions, together with section 1 of the act of 1866, and they amount to this: that by section 1 the wife was invested with power to contract, in her own name, for labor and materials for improving, repairing, and cultivating her separate estate, and, by section 28 of the code, she was liable to be sued, either with or without her husband.
Where the action concerns her separate property, and is founded upon a contract made by her, as provided in section 1 of the act of 1866, she may be sued with or without her husband in action at law, and her property is liable to be taken to satisfy the judgment, the same as if she were a feme sole.
In short, as to all contracts which the wife may make in her own name for the benefit of her separate estate, a right of action at law is given against her as a feme sole.
Whether, under section 28 of the code, as it then stood, or as amended in 1874, there may not be other causes of action than those arising under the act of 1866, which concerns her separate estate, in which a judgment at law might be rendered against her, we need not now inquire.
As to all equitable proceedings to charge the estate of a, married woman, upon other contracts or engagements than those specified in the act of 1866, no change or modification has been made by these statutes; but as to those contracts specified, a plain, adequate, and complete remedy at law is given, the same as if the wife were a feme sole. Phillips v. Graves, 20 Ohio St. 372; Todd v. Lee, 15 Wisconsin, 380; Yale v. Dederer, 18 N. Y. 265.
The case at bar, not being upon a contract for the benefit of the wife's separate estate, must stand or fall, unaided by these statutes, farther than their tenor and spirit may aid the court in ascertaining the powers of the wife to bind her separate estate upon other engagements, and the power of a court of equity to enforce them.
It has been suggested with much reason that this legislation, prescribing the wife's liability in the cases specified, raises the presumption that in all other cases it was not intended she should bind her estate, and the maxim expressio unius exclusio alterius is invoked.
It is said, as the legislature has delegated to the wife power to contract in specified cases only, the presumption is that it was not intended she should do so in other cases generally. The answer is: Prior to this legislation the wife had the power to make engagements binding, not on her, but on her property, in a court of equity. The effect of these statutes was: 1st. To enlarge her separate estate by making all her general property her separate estate; and, 2d. To make her liable at law for the improvement of that estate, as provided in section 1 of the act of 1866. The remedy on all contracts, which by this act she is authorized to make in her own name, was changed from one in equity to one at law. Phillips v. Graves, 20 Ohio St. 372; Jenz v. Gugel, 26 Ohio St. 527.
We must therefore recur to the principles governing courts of equity, as modified by Ohio Statutes, to find a solution of this case.
The engagements of a married woman having a separate estate, and acting as a feme sole, may be classified as follows:
1. Such as benefit her separate estate, which by the act of 1866 she is authorized to make in her own name.
2. All contracts concerning her separate estate other than those which she can make in her own name by the act of 1866.
3. All debts incurred by her for her own benefit.
4. Debts contracted by her on her sole account, though not for her own benefit, but the benefit of which accrues to others.
5. Contracts of suretyship for the debts and obligations of others.
Remedies under the first class are now by action at law, and not in equity. In the remaining classes, whatever relief exists, is in equity, as by common law, such engagements are void.
1. The effect of the act of 1866 was to remove all causes of action against a married woman on her contracts which she is therein authorized to make in her own name from the domain of equity, if there is an adequate remedy at law.
2. The second class embraces all contracts concerning the separate estate, not so authorized to be made in the wife's name, such as the execution of deeds, mortgages, and leases for a longer term than three years. As to these, the statute requires that, to make the wife's acknowledgment valid, she must have been examined separate and apart from her husband, and that she freely and voluntarily executed the same. As to these, and all other contracts under this class, whatever remedy exists is equitable.
3. When the wife contracts debts on her own account and for her own benefit, whether it is a general engagement or one where she specially charges her estate.
Phillips v. Graves, 20 O. S. R. 372, belongs to this class.
There the power of a married woman to charge her separate estate for her own debts or obligations for her benefit, and what will constitute evidence of intention to so charge, has been clearly defined and settled.
That was a case of a contract not coming within the class provided for in the act of 1866, nor concerning her separate property, but was a general engagement for a piano, which she had purchased in her own name and for her own benefit, for which she agreed to pay.
No reference was made in the contract to her separate estate; nor was any intention expressed in the written obligation to make the debt a charge on the land. It was held:
1. That a married woman, possessed of a separate estate of real or personal property, may charge the same with her debts at least, to the extent that the liabilities may be incurred for the benefit of such estate, or for her own benefit, upon the faith of her separate property.
2. That such power is incident to the unqualified ownership of property, and is only limited by the terms of the instrument creating such estate, or by implication arising therefrom.
3. That the intention to charge her separate estate, at the time her liability was incurred, may be either expressed or implied.
4. That such intention may be implied from the fact that she executed a note, a bond, or other obligation for the indebtedness.
As the case at bar is not to charge the separate estate with the wife's debt, but as an indorser or surety on the debt of others, it is an obligation not incurred for the benefit of herself or her separate estate. All that is decided by that case was, that where the wife incurred a debt for the benefit of herself or of her separate estate, an intention to charge the separate estate may be implied from the mere fact that she gave a note or other obligation for it. Whether, if no note or other obligation had been given, but the debt had been verbally incurred for her benefit, such implication would arise, is not decided, but the facts of the case and the reasoning of the learned judge would seem to be that the implication arises, rather from the fact that she contracted the debt for her own benefit than because she gave the note; for it is said, on page 385, in speaking of the rule in England, whether the debts were verbal or in writing, courts of equity will charge them on the land when the intention is either expressed or implied. It is said that the chancellor proceeds in rem, and charges her separate estate, "as equity and good conscience require."
In that case one of the allegations of the petition was:
"That said pianoforte was purchased by said Elizabeth for her own benefit, and for her own separate use and property, and "that at the time of the sale of the said pianoforte it was agreed and understood, by and between said plaintiffs and said Elizabeth, that the same was sold
upon the credit of her separate property, and that she intended to, and did, charge her separate estate and income with the payment thereof."
To this there was a demurrer, by which it was admitted that it was agreed between them, at the time the wife bought the piano, that it was sold on the credit of her estate, and that she intended to, and did, charge her separate estate.
Here nothing was left to implication. The debt was, by express agreement, a charge on the estate. An intention to so charge was manifested by her, and on the faith of that the piano was sold.
The benefit of the purchase inured to the wife, and, in addition to this, it was made on the faith of her property, she intending to, and, in fact, charging the same with its payment.
It was thus a strong case for equitable cognizance.
In the opinion of the court, and correctly as we think, this principle is adopted, that, as the debt was contracted by her in her own name, the benefits of which inured to her, it was but just that her estate should be charged, and for that purpose a court of equity would impute to her an intention to charge to prevent her from the commission of a fraud, and to compel her to do that which in equity and good conscience she ought to do.
As was said in Yale v. Dederer, 18 N. Y. 265, the debt was made a charge upon the separate estate, not on the ground that the contracting of it was of itself an appointment or charge, but because, when contracted for the benefit of the wife, it was just that the estate should answer.
It was such a state of case as if she had been a feme sole the common law would, in the absence of an express promise, imply one. 1 Chitty on Con., chap. 1, sec. 11, and cases cited.
The foundation of the remedy is that courts of equity will not encourage fraud, and as a wife's separate estate is under its special guardianship a trust for her benefit, and as she can not bind herself, they will not allow her to plead her disability where she has received the benefit and in conscience should pay.
They do not proceed on the fiction that the creation of the debt was an appointment or charge created by the owner, but from the equity of the case the court would make it a charge, and to that end it would presume an intention to do what in equity should be clone. Owen v. Dickenson, 1 Or. & Ph. 48; N. Am. Coal Co. v. Dyett, 7 Paige, 9; Heatly v. Thomas, Story Eq., 1400, 1397.
Judge Comstock says (18 N. Y. 275): The principle which now governs in cases of this kind is, that the wife's separate estate is liable to pay her debts, 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 her husband's debt. 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."
In that case it was held that "a married woman does not charge her separate estate as surety on a promissory note for her husband, not for her own benefit or the enhancement of her estate." It is further said:
"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 can not. 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, in Ludlow 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 the 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."
In the argument on the demurrer, it was claimed that the wife could not introduce evidence to show that there was no intention to charge her estate, as that would contradict the contract made by the indorsement. It is insisted that by her indorsement she is conclusively presumed to have intended to charge her estate.
By the terms of the instrument her engagement, treating her as a feme sole, was that of an indorser of commercial paper.
She was creating no debt or other obligation from which the common law would imply a promise to pay otherwise than as the legal effect would impose. Like all other sureties, if she is liable at all, in the absence of a contract to charge her separate property, she is liable on the words of her contract. The plaintiff would deny her the right to show there was no such contract to charge, and by implication create for her an engagement neither expressed nor legally implied from such an indorsement.
The indorsement made no provision for charging her estate.
Such a provision can not be inferred or implied without adding something to the indorsement which is not in it, and this can not be done otherwise than in writing in the indorsement itself. It is useless to say that if we do not hold that the wife, by her simple indorsement of her husband's note in blank, intended to charge the payment of the note upon her separate estate, we must suppose she meant nothing by the paper; for by the same reasoning every writing would necessarily be of some effect, and every contract of a married woman valid.
Upon this point we adopt the language of the court in Yale v. Dederer, 22 N. Y. 456:
"The intention here spoken of is not an intention which is proved by extraneous evidence dehors the contract, but an intention which is to be inferred from . . . the contract itself. No court has ever held or intimated that parol evidence was admissible to prove that a bond or note of a feme covert was intended to be a charge on her estate. To prevent this would be in direct conflict with the rule that excludes all parol evidence offered to explain a written instrument.
"The intent, to be of importance, must be a part of the contract; that is, the true meaning of the contract, when
justly interpreted, must be that the debt which it creates should be a charge upon the estate."
Edwards on Bills and Promissory Notes, second ed., sec. 70, states the law of the case correctly:
"Even where she (the wife) has a separate estate it will not be charged with debts incurred by her, unless they are incurred with that understanding. There must be an intention to charge her separate estate; otherwise the debt will not affect it.
"The act of signing and delivering with her husband a joint and several promissory note for personal property purchased by him does not charge her separate estate; for the law will not infer or imply an intention on her part to make the charge, from the mere fact that she executed the instrument. The intention to make the charge must be declared in the contract itself; if that be in writing, the intention cannot be shown by parol outside of the written engagement; while as to her separate debts, contracted separately on her own account, the inference is, that she intended to make the charge. In brief, a debt contracted either for the benefit of the separate estate of the wife, or for her own benefit, upon the credit of her separate estate, may be collected out of her separate property."
While in some of the states there are decisions to the effect, that from the mere fact of signing a note by a married woman for the accommodation of another, a court of equity will imply an intention to charge the separate estate; yet the decided weight of authority accords with sound principles of equity and a wise public policy, in holding, that in case of a married woman, as in all cases of persons not under disability, the contract of suretyship is one the party has actually made, by the party sought to be charged, and that, in such case, a court of chancery will not imply an intention to charge her estate, from the mere fact of becoming surety for her husband, and then specifically enforce that implied contract.
If she had induced the indorsee to take the note by any act of hers, upon the faith of her estate that would amount to an equitable estoppel, it might perhaps be otherwise. As was said in Willard v. Eastham, 15 Gray, 328, and the rule as now settled in New York and Massachusetts is: "That, when by the contract the debt is made expressly a charge upon the separate estate, or is expressly contracted on its credit, or when the consideration goes to the benefit of such estate, or to enhance its value, then equity will decree that it shall be paid from such estate or its income, to the extent to which the power of disposal by the married woman may go; but where she is a mere surety, or makes the contract for the accommodation of another, without consideration received by her, the contract being void at law, equity will not enforce it against the estate unless an express instrument makes the debt a charge upon it. It has been held, on like grounds, in numerous instances, that to render the general estate of a married woman liable the debt must be contracted for the benefit of the estate, or for her benefit on the credit of the estate, or the charge must be imposed in terms by the contract."
See, also, Story on Equity Jurisprudence, sec. 1401 (a):
"Not many years back this subject underwent a careful examination in the court of chancery appeal, and after a thorough revision of the leading cases upon the subject from the earliest period, Lord Justice Turner, who delivered the leading opinion, came to the conclusion that a court of equity, having created for married women a separate estate, has enabled them to contract debts in respect to it; that their separate estate may be subjected to the payment of such debts, and that a court of equity will give execution against it; but it was here held, that something more is necessary to bind the separate estate of a married woman than the mere existence of such facts as would create a debt against a single woman. It should appear that an engagement was made with reference to and upon the faith or credit of the estate; and where a married woman, living apart from her husband and having separate estate, contracts debts, the court will impute to her the intention of dealing with her separate estate, unless the
contrary is known. But where the wife becomes a party to an accommodation note, as surety merely, it has been held that her separate estate is not liable for the payment of it, unless she expressly charge it for that purpose."
"In an action against husband and wife, to charge the separate estate of the wife, upon a note or bond signed by the husband and wife, the legal inference is, that it was the debt of the husband. The legal conclusion is, that it could not be the debt of the wife, she being incompetent to contract it. In order to charge the separate estate of the wife, there must be something to show that it was given for her benefit—that is, for the use of her separate estate." Goodall v. McAdam, 14 How. Pr. (N. Y.) 385.
"A debt contracted by a married woman, for the accommodation of another person, without consideration received by her, will not be enforced in equity against her separate estate, unless made a charge upon it by an express instrument." Willard v. Eastham, 15 Gray (Mass.), 328.
And in the opinion, p. 334:
"We can see no sufficient reason for holding a contract which is wholly void at law, from which neither the married woman nor her estate receives any benefit, and which does not in any manner refer to her separate property or undertake to make any charge upon it, to be a contract relating to such property.
"And we think upon mature and full consideration, that the whole doctrine of the liability of her separate estate to discharge her general engagements rests upon grounds which are artificial, and which depend on implications too subtle and refined. The true limitations upon the authority of a court of equity in relation to the subject are stated with great clearness and precision in the elaborate and well-reasoned opinions of the court of appeals in New York in the case of Yale v. Dederer.
The ease referred to by Story is one of the very latest English cases on this point. We refer to Johnson v. Gallager in the court of chancery appeal. (The Jurist U. S., vol. 7, pt. 1, p. 273.) It is an able and exhaustive review of all the English eases, and may be regarded as a successful effort to settle the disputed questions involved, arising from the conflicting grounds upon which the courts of chancery in that country have acted.
The result which that high court has finally reached is in harmony with the foregoing conclusions, and are thus stated:
"A court of equity, having created for a married woman a right to a separate estate, has enabled them to contract debts in respect to it; and, although the persons of married women can not be made liable for their debts either at law or in equity, their separate estate may in equity be rendered so liable; and a court of equity will give execution against such separate estate just as a court of law gives execution against the property of other debtors. There is no sound distinction, either in principle or authority, between special and simple contract debts, as to the liability of her separate estate for the same respectively.
"Something more than the obligation which the law would create in the case of a single woman is necessary to affect the separate estate, and in order to bind the separate estate by a general engagement, it should appear that an engagement was made with reference to and upon the faith and credit of that estate."
Sir Knight Bruce, Lord Justice, says: "Upon the whole, I have come to the conclusion that not only bonds, bills and promissory notes of married women, but all their general engagements may affect their separate estates, except so far as the statute of frauds may interfere, where the separate estate is real property." . . . "It seems to follow that to affect the separate estate, there must be something more than the mere obligation which the law would create in the ease of a single woman. What that something more must be depends in each case on the circumstances." "According to the best opinion which I can form on a question of so much difficulty, I think that in order to bind the separate estate by a general engagement, it should appear that the engagement was made with reference to and upon the faith or credit of that estate, and that whether it was so made or not is a question to be judged of by the court upon all the circumstances of the case." Parker v. Simmons, 4 Allen, 258; Keaton v. Scott, 25 Geo. 652; Yale v. Dederer, 18 N. Y., 265 and 22 N. Y., 450; Wolf v. Van Meter, 19 Iowa, 134; Shannon. v. Canney, 44 N. H. 592; Peake v. LeBarr, 6 C. E. Green, 269; Armstrong v. Ross, 5 C. E. Green, 109; 1 White & Tudor, Lead. Cases (401 to 427), and cases cited; Coleman v. Woolley's Ex'rs; 10 B. Mon. 320; Bell v. Keller, 13 B. Mon. 384; Thomas v. Folwell, 2 Whart. 11, 16; Com. Ex. Bank v. Babcock, 42 N. Y. 613.
We do not undertake to say, as is held in New York and Massachusetts, that the intention to charge a married woman as a surety must be expressed in the instrument itself, nor that she may not charge her separate estate by a parol contract or engagement. These questions are left for decision when they arise. We have cited these authorities in support of the simple case before us, that a court of equity will not imply an intention to charge the separate estate, from the mere fact of an accommodation indorsement to enable the husband to negotiate a note.
This conclusion is in complete harmony with the legislation of this state in favor of married women, and like those statutes will serve to protect married women in the enjoyment of their separate estate, freed from the dangers to which they would be subjected, and the perils of having their property swept away by going surety for their husbands, whether induced to do so by the peruasive influence of affection, or to avoid unpleasant domestic relations. Public policy supports this rule.
Our statutes have exempted the wife's property from the payment of the husband's debts upon execution, and have divested him of all interest in or control over it. They give her the right to prevent the sale of his property in certain instances. This is for the wife's benefit and protection. Why should equity seek to destroy that protection by appropriating all her property for the husband's debts, when she has not clearly and fairly intended it should be done?
Under this legislation she has the sole control of all her property, and can make contracts valid in law concerning it, as authorized thereby. There is no longer any foundation for the argument, that as equity creates and protects separate estates, it has the right to control them. The English cases which have largely rested on this idea, always somewhat illusory, will now have but little weight.
The jus disponendi which attaches in Ohio to the estates of married women, is largely regulated by statute. She can not convey, or mortgage, or lease for a longer period than three years without the consent of her husband. Her separate estate created by statute is subject to his curtesy; and all contracts concerning it made by her other than for labor and materials for improving, repairing, and cultivating the same, or for leasing for less than three years, are subject to her disabilities as a feme covert as well as to the limitations imposed by the statutes regulating conveyances and of frauds, whenever they are applicable, except where a case is made for the intervention of a court of equity to charge such separate estate.
Decree for Rosine Straehle, and cause remanded.
DAY, C. J., concurred in the law as stated in the foregoing opinion and syllabus, but not in the judgment upon the law as applied to the facts shown by the record.