
    Rice v. Railroad Co.
    1. An indebtedness incurred by a married woman, for the benefit of hex-self or her separate property, and upon its credit, and the giving of a note or other obligation therefor, are facts from which a court of equity may imply and enforce a charge against such property.
    2. But axx ixxtexxtion to charge such property, will not be implied, merely from the giving of a note or other obligation by a married woman.
    3. Neither will her separate property be made liable fox- her general engagements, in the absence of a coxxtract valid in law to bind the same, or of such facts and circumstances as make it, as between the parties, just and equitable.
    4. When á married woman subscribes to capital stock of a railroad eorporatioix; by which she agrees to take and pay for a certain number of shares of said stock, but makes default in payment, and action is brought to charge hex- separate property with the amount of such subscription : iHtild, That in the absence of any proof that either party dealt on the credit of such property, equity will nbt imply ox- enforce a chax-go against the samé.
    Error to the District Court of Sandusky county.
    
      The plaintiff below, a railroad corporation, under the laws of Ohio, brought an action to charge the separate estate of Mrs. Rice, a married woman, upon the following agreement:
    “ We, the undersigned, hereby subscribe for the number of shares of the Columbus, Tiffin and Toledo Railroad Company (each share being fifty dollars) set opposite our names respectively, and agree to pay the same unto said railroad company, as follows: Five dollars on each share shall be payable at the time of making this subscription, and the residue thereof shall be paid in installments not exceeding five dollars per share per month, to such person as may be required by the directors of said company. Conditioned, further, that the railroad line be so located as to permit the depot grounds to be located at or so near the village of 'Woodville as to make it a station on said road of the town of Woodville, in the county of Sandusky, State of Ohio.
    “Woodville, Ohio, May 18th, 1869.
    Names. Number of shares. Amount.
    (Signed) - - -
    “ Mrs. A. Rice. 20 ' $1,000 00.”
    The petition alleges the performance of all conditions precedent on plaintiff’s part, and that Mrs. Rice has failed to pay the several calls on said subscription.
    It is further alleged, at the time said subscription was made, Mrs. Rice was, and still is, the wife of Archibald Rice, and that she then was, and still is, the owner of some $12,000 worth of real- and personal property, which is, with the consent of the husband, who is insolvent, under the sole control and management of the wife, and which she owns in fee simple.
    
    For the purpose of making said subscription a charge upon this property of the wife, it is averred that the stock was purchased by the wife for her own benefit and that of her separate estate, and to induce the railroad company to construct its road Dear said village of Woodville, in the vicinity of her lands, thereby to enhance and increase their value; and that, at the time she made the subscription, it was understood and agreed by and between the parties that her engagement was made on the faith and credit of her separate estate, and that she intended to and did charge her separate estate and income with the payment thereof.
    The only answer necessary to be noticed is that of Mrs. Rice touching this point.
    She denies that she was the owner of a separate estate, or that said agreement was made on the faith and .credit thereof, or that she intended to or did charge her property with the payment of said subscription.
    Upon the trial, the court, upon the pleadings and evidence, found in favor of plaintiff below, and the amount due, and ordered a certain eighty acres of the land described in the petition to be sold to pay the same.
    Upon the overruling of a motion for a new trial, a bill of exceptions was taken, containing all the evidence.
    
      John M. Lemmon, for plaintiff in error, urged:
    1. That Mrs. Rice, being a feme covert, could not make such a contract — and no charge was created on her separate estate — and the evidence shows no separate estate. The eighty-acre lot was bought with the joint means of Mr. and Mrs. Rice, and deeded to Mrs. Rice.
    There is no proof that any of the purchase-money was Mrs. Rice’s “ separate means or money.” No gift is shown to her. The evidence wholly fails to show any separate estate.
    See act of March 23, 1866, 63 Ohio L. 47; also S. & S. 389; Logan v. Thrift, 20 Ohio St. 63; Clark v. Clark, Ib. 128; Phillips v. Graves, Ib. 371.
    Mrs. Rice had not legal capacity to make this contract, if she had no separate estate; and if she had, her capacity to contract was limited to contracts “ for improving, repairing, and cultivating ” the land.
    She had no general contracting capacity. 2 Bishop on Mar. Women, § 232; Swasey v. Antrim, 24 Ohio St. 87.
    The married women’s act of 1861, and its amendments. is to be looked to to ascertain the kind of estate Mrs. Rice had, and for the measure of her capacity to contract with reference to it.
    Examination of the statutes cited will show beyond question that Mrs. Rice had no capacity under or by them to make this contract.
    Had she such capacity, or rather had a court of chancery power to charge her separate estate with payments of such obligations? Levi v. Earl, 30 Ohio St. 253; Machir v. Burroughs, 14 Ohio St. 514, are authorities in point. See also Thomas v. Folwell, 2 Whart. (Pa.), 11. Jaques v. M. E. Church, 3 Johns. Ch. 78.
    This contract for shares was not for Mrs. Rice’s benefit, nor for the benefit of her separate estate. It does not appear she had any power given her to charge the estate by any deed. The deed to her was in fact a general deed to her and her heirs in the ordinary form. See, further, 1 Lead. Cases in Eq. (pt. 2), 735, 737 (4th Am. ed.)
    
      John McCauley, for defendant in error:
    Is this subscription to the capital stock of the railroad company such an engagement or liability as a court of equity will charge upon the separate property of a married woman ?
    The contract itself shows that it was made at "Woodville, Ohio, and it is provided by it that the company -with which the contract is made shall locate the line of its road so near the town of Woodville as to make it a station on the road. This is a condition of the contract. The record shows that Mrs. Rice, when she signed this contract, was the owner of the two tracts of land described in the petition; that she was therefore responsible, and that at the same time her husband was insolvent. These facts show that her contract was taken, rather than that of her husband, because of her ability to pay for the stock, and therefore with reference to and upon the faith of the separate property. The condition in the contract indicates that she had an interest in the location of the road. It is difficult to see what interest she could, have in the location of the road, except as its location might affect the value of her lands; and that therefore the contract was made for the benefit of her property.
    The principles applicable to this branch of the case have probably been fully settled in this court, in the two cases of Phillips v. Graves, 20 Ohio St. 371, and Levi v. Earl, 30 Ohio St. 252.
   Johnson, Chief Judge.

The question for review arises upon the overruling of the motion for a new trial. It is assigned for error that the courts below erred in holding that upon the facts disclosed upon the trial, the real estate of Mrs. Rice was chargeable with the payment of her subscription to the capital stock of the railroad company.

It is conceded that her agreement was void at common law.

Eor the purpose of charging the separate estate, it is alleged that this subscription for stock was made for the benefit of the wife and that of her separate estate, and to induce the railroad company to construct its road near the village of Woodville, near which her lands were situated, and thereby to enhance their value, and that when she made the agreement it was understood and agreed between the parties, that it was upon the faith and credit of her said estate, and also that she intended to and did charge the same with the payment thereof. These material averments are put in issue by the answer of Mrs. Rice, and, as all the evidence is now before us, the question now is, did the court of common pleas and district courts err in charging the property of Mrs. Rice with the payment of this obligation.

There is no conflict in the evidence upon this issue.

Erom the bill of exceptions it appears :

1; That the tract of land upon which the court below charged this debt, was purchased with the joint means of both husband and wife, and by agreement between them the title was taken in the name of the wife.

2. That in 1869, Mrs. Rice, at the request of a Mr. Burns and others, not agents of the railroad company, but who seemed to be acting in behalf of the citizens of "Woodville, who desired to bring their road by their village, made the foregoing subscription on the paper on which there were other subscribers, and delivered the paper to Mr. Burns, subject to certain conditions not necessary to be here stated.

3. That nearly two years afterward Mr. Burns delivered the subscription paper to the directors of the company who accepted it, and thereafter constructed the road according to the conditions of said agreement.

4. That nothing was said by Mrs. Rice, at any time, expressing or indicating an intention to charge her property with the payment for said stock, nor is there any proof, unless it can be implied from the mere act of making the subscription, that she was dealing on the faith or credit of said property, or intended to charge it.

5. Neither is it shown that the company, at the time they received and accepted these subscriptions, or when it built the road, knew that Mrs. Rice was married or single, or that she had any property to charge.

6. Neither does it appear that the company acted upon the credit of Mrs. Rice’s property, either in accepting the subscription or in building the road; nor is it shown that the construction of the road has inured to the benefit of her or her property in any other manner than it did to the public generally.

Upon this state of facts it is quite clear no-case is made for the equitable relief sought.

This is an executory agreement, which is void at- common law.

It does not fall within that class of contracts relating to her separate estate, wjhich a married woman is authorized by the statute to make, “ for labor and materials for improving, repairing, and cultivating the same.” S. & S. 391. No intention to charge the separate estate is expressed in the written contract sued on, nor is there oral proof of such intention otherwise expressed. Neither party acted on the faith and credit of the wife’s property.

The only ground on which this judgment can be supported is to hold that, from the mere fact that Mrs. Rice signed this obligation to take and pay for stock, the court will imply an intention to charge her property, and then enforce that implied intention.

In support of this proposition counsel quote a detached point of the syllabus in Phillips v. Graves, 20 Ohio St. 371, which says that “ such intention to charge may be inferred from the fact that she executed a note or obligation for the indebtedness.”

In thus detaching this point from the context, its scope and meaning is misapprehended.

That was an action to charge a married woman’s separate estate, upon a note given by her for a piano, purchased by her for her own use and benefit, upon the credit of her separate estate, under an agreement made by her when she incurred the debt, that she so charged it with such payment.

The court, without undertaking to say whether a court of equity in Ohio would, under any circumstances, charge the separate estate of a married woman with her general engagements, very cautiously say it will so charge the same with her debts, at least to the extent the same may be incurred for the benefit of her separate estate, or for her own benefit upon the credit of her separate estateand that in such case the intention to charge may be implied from the fact that she gave a note or other obligation for the indebtedness.

This case is not, therefore, an authority for the doctrine that such implication arises in all cases where a married woman makes a contract which is voyl at law, but only in the -special cases named.

Neither is there any conflict between Phillips v. Graves and the case of Levi v. Earl, 30 Ohio St. 147.

' The examination given to the authorities in the last case, makes it unnecessary to repeat them here.

The conclusion there reached was that the jurisdiction of a court of equity over the contracts of married women, and its power to charge her separate estate for the payment of'her obligations, does not depend on the contract, for that is void, nor on the ground that by incurring the obli;gation she thereby, and by way of appointment, charges her estate, but upon the broad principle that courts of equity will give relief against such estates where upon all the facts and circumstances equity and good conscience demand it.

In such cases, the chancellor will not permit a married woman to commit a fraud on another, any more than he would if she were a feme sole.

It was further held in Levi v. Earl, that something more than merely incurring the obligation which the law would create if she -were single is necessary to affect the estate ; that is, equity will not.imply an intention to charge and enforce such implied intention, merely because she has incurred a void contract; and-in order to bind such 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 make it equitable that such charge should be enforced.

What will, in such cases, -where the obligation is, as in this case, purely executory, constitute good ground for relief, where no direct benefit accrues to the feme covert, or •to her property, must be determined as each case arises.

The case at bar is that of an executory contract to pay for stock in a railroad corporation. There is no intention expressed in the contract, nor proved orally, to charge the separate estate. Neither party dealt or acted upou its credit. It does not appear that either she or her estate has been benefited by the construction of the road, nor that her subscription induced or influenced the company to act otherwise than it would have acted if. it had not been made.

Upon the facts and circumstances of this case, we are clear that there is no ground for the intervention of a court of equity.

Whether this tract of land, which was purchased with the joint means of husband and wife, and the title taken in her name, by agreement between them, is the wife’s separate property; whether there is a difference as to this equitable power to charge the wife’s lands, betwreen the legal estate of the wife, constituting her general property at common law, but made separate property by statute, and that class of property known in courts of equity, before the enactment of the statute, as the wife’s separate estate; and whether it makes any difference whether the intention to charge is expressed in the contract or orally, where such intention can not be implied, are questions mooted in argument, but as they are not necessary to a disposition of this case, they are not considered.

Judgment reversed.  