
    Litton vs. Baldwin et als.
    
    When a rtiarried woman is authorized by a deed of settlement to dispose of estate secured to her separate use, she must do' so in the mode prescribed by the deed, or such disposition is void. And to create a charge upon such estate, her intention must be made manifest by express words. Such estate cannot be itiade liable by implication.
    Mary Flora Dickson, in contemplation of marriage, conveyed to Hoggatt, her slaves, real estate, money and other property, in trust for her sole and separate use, and free from liability to the debts and engagements of her contemplated husband, H. Baldwin. This deed reserved to herself “full power and authority by her directions in writing, in the presence of one or more witnesses, to alienate, sell or dispose of-in any manner she might think proper” the said property. She and said Baldwin were married. Baldwin became insolvent, and Mary F. Baldwin purchased articles of household and kitchen furniture of Litton, which were necessary for the comfort and subsistence of the family, for which she executed a promissory note, sealed in the usual form, to Litton, as clerk of the chancery court at Franklin, with personal security for its payment.
    The note fell due, and Litton filed a bill in the chancery court against said Mary F. and Henry, to subject the separate estate of said Mary F. to the satisfaction of said note.
    The following decree was entered, to wit:
    “Be it remembered, that this cause came on to be finally heard on the 13th day of November, 1847, before the honorable Terry H. Cahal, chancellor, &c., upon the bill, answers, replications thereto, the deed of marriage contract between the said Henry Baldwin and Mary F. Dickson, who subsequently became his wife, and the note under seal of the said Mary F. Baldwin and Return J. Meigs. And it appearing to the satisfaction of the court, that the said note, under seal, was executed by the said Mary F. Baldwin, while she was a married woman, and that it is simply a contract by her, under seal, for the payment of money, in which she has not bound, nor attempted to bind,her separate property. The court is therefore of opinion, that said note, under seal, is, as to the said Mary ■F. Baldwin void, and an absolute nullity, and that the court could not make any decree subjecting the separate property of the said Mary F. Baldwin to the satisfaction of said note, without making a contract for her, which she has not made herself. It is therefore ordered, adjudged and decreed, that the bill be dismissed, and that the complainant pay the cost.” Appeal.
    /. M. Lea, for complainant.
    Baldwin is insolvent and his wife possesses a large personal estate for her sole and separate use, and, of which, by the deed of marriage settlement, she has the absolute disposition. She' executed a promissory note to complainant for furniture, which was sold as the property of her husband by a decree of this Court. In the body of the note, no express reference is made ito her separate property ás a fund for payment. Is her separate estate liable?
    Signing a note as principal or surety is held as prima facie evidence of intention to charge her sepílate estate, without any proof of a positive agreement; 2 Story’s Eq., 84; 1 Bro. Ch. R. 16; 15 Ves. 596; 3 'Madd. 387; 22 Wend. 586; 4 Sim. 82; 17 Ves. 365; 9 Ves. 520; and also a very late case in 4 Beavan 319, where the question is fully discussed and decided as stated above. The reason given is very good — she must have intended the security should have some operation, anditcan have no other except against her separate estate.
    It has been decided by this court in the case of Morgan vs. Elam, 4 Yerg., and is unquestionably the law — that a married woman can have no other or greater power over her separate estate than is granted by the deed or instrument creating such separate estate. The power of absolute disposition however, implies the power to mortgage or charge it by contract. See 6 H. & J. 497. The true rule is, if she can sell the property and make a good title to the purchaser she can render it in equity liable for her debts or contracts. Equity takes a sensible view of the relations of husband and wife; and if the wife has a separate property the court will be as far from- aiding her to commit frauds by living upon other people, as it is prompt to secure her property from the intemperance of a worthless or extravagant husband.
    
      Fogg, Ewing, and Meigs, for the complainant.
    
      Washington, for the defendants.
    1st. The said Mary F. Baldwin, being a married woman, the sale of said goods to her was void, and no recovery coiild be had against her for the price of them, either at law, or in equity. 2 Ves. 156, Bolton vs. Williams. — Law Lib., 22 vol., pages 137-8-9, being pages 255-6-7-8, of 2d vol. of Roper on Husband and Wife; Sth Ves. 498-486; 3 Maddux 99 5 Clancy on Husband and Wife 331 to 346.
    2nd. The demand of the complainant, is of a purely legal character, and' he His no ground for coming into a court of equity, without first establishing his demand by a judgment at law; there being no connexion between the demand, and the separate property in the hands of thé trustee.
   McKinney, J.

delivered the opinion of the court.

The defendant, Mary F. Baldwin, is a married woman, wife of the defendant, Henry Baldwin. The bill seeks to subject her separate property to the payment of a promissory note for 1337 50, made by her and another, as her surety, to complainant, on the 15th of January, 1842. The consideration of said note, was the purchase by said Mary of certain articles of household and kitchen furniture, sold as the property- of her husband, under the decree of a court of chancery. The bill alledges, that the husband, Henry Baldwin, was utterly insolvent ; that said furniture was absolutely necessary for the comfort and support of said Mary and her children; that at the time said note was made, it was understood and agreed, that the separate property of said Mary was to be liable for the payment thereof, »and that credit was given alone on the faith of such separate estate; that her husband had no credit; was not looked to for payment, and was not considered in any way as a party to the transaction.

It appears, that on the 24th day of October, 1830, certain property, consisting in part of a number of slaves, was con veycd to the defendant, Hoggalt, by deed of marriage settle • ment in trust, for the sole and separate use of the defendant, Mary, then a feme sole. A copy of said deed is exhibited in the record. After vesting the legal title to said property in the trustee, it contains, among others, the following stipulations, viz, that the said Mary “shall have full power and authority, by her directions in writing under her hand, in the presence of one or more witnesses, to alienate, sell, dispose of, or invest the said negro slaves, debts, money and other property, in any way or manner she may think proper: and also to bequeath, or devise by her last will and testament; with the power, from time to time, to appoint any other trustee, or agent, for the management of said negroes, debts, money and other property. It is further agreed by the-parties. to these presents, that the said negroes and their increase shall remain in the possession of the said Mary, or the possession^ any person the said Mary may choose; and that she may, by her directions in writing as aforesaid or otherwise, appropriate as she may think proper, the hire or labor of said '.negroes and their increase, and also the interest and profits arising from the monies due her, from time to time, and at all times hereafter.”

The bill alledges, that some of the slaves mentioned in said deed of settlement have died, some have been sold, and others mortgaged; but that a number still remain undisposed of, and prays that by a sale, or from the profits of the hire of said slaves, the complainant may have satisfaction'of "said debt. The defendant, Mary, in her answer to the bill, denies that there was any understanding or agreement on her part, that her separate property was to be made liable to the payment of said note, and there is no proof in the record upon this point. The chancellor dismissed the bill, and the complainant brings the cause to this court by appeal. It is insisted, on the part of the complainant, that the decree is erroneous, and ought to be reversed. We do not think so. In the case of Morgan vs. Elam, A Yerg. 375, it is laid down as the settled doctrine upon this subject, that the extent of the power of a married woman, over her separate estate, depends upon the terms of the deed or settlement; that she is to be regarded as a 'feme sole only so far as the deed has expressly conferred upon her the power of acting as such; that she can exercise no authority or control over her separate property, except such as is specially given in the deed, and only in the mode therein prescribed. This, we think, is the correct principle, and it is decisive of this case, [it is obvious that the making of a promissory note, which contains no reference either to the power or to the subject matter thereof, and indicates no agreement, or intention, on the part of the maker, to create a charge on her separate estate, cannot be regarded as an execution of the power conferred upon the defendant in the foregoing deed of settlement, or as an appointment under it ; it is merely evidence of a personal contract, or promise on the part of the defendant, Mary, to pay the amount of money therein specified, and only constitutes the complainant her .general creditor. Courts of equity, in analogy to the rule of law, hold that a married woman cannot, by her general personal contracts - or agreements, bind her separate estate. But, as a consequence of the doctrine in equity, that she may take and enjoy property to her separate use, she is permitted," to the extent and in the mode prescribed in the deed of settlement, to deal with it as a feme sole, when the intention 'clearly appeared so to dispose of it, but the intention is necessary to be manifested. 2 Roper on Husband and Wife, 239-40, and cases therein cited.

But if is argued, that the intention to charge her separate estate may be implied, and that the execution of a promissory note or bond as principal or surety, for herself or her husband, or jointly with him, is prima facie evidence of such intention. It is true some of the cases have gone this length. In 2 Roper on Husband and Wife, 253-4, note, it is said, that this is a strong case, of constructive implication by courts of equity, founded more upon a desire to do justice, than upon any satisfactory reasoning. The argument in favor of it is, that the security must be suppqsed to have been executed with the intention that it shall operate in some way, and that it can have no operation, except as against her separate estate. But judge Story, who cites the above passage, adds, “to this extent the doctrine has not, as yet, been established, although the tendency of the more recent decisions is certainly in that direction.)” 2 Story’s Eq. sec. 1400. We cannot concur in this reasoning. If correct, as has been justly remarked, it would apply to all the general pecuniary engagements of a married woman, and, we may add, would confer upon her the power of making personal contracts generally, in opposition to the uniform principle, now as clearly established in equity as at law, that a feme covert cannot, by contract, bind either her person or her property generally.- Such a doctrine would defeat the object of conveyances for the separate use of married women. A different rule has governed the course of decision in this state, at least since the determination of the case of Morgan vs. Elam ; a rule, we think, more consis£ent with sound principle, and the weight of authority, which is, that to charge the separate estate of a married woman with her contracts, or engagements, there must be proof of’an express agreement and intention to create such charge: it cannot be made liable by implication.

The decree of the chancellor will be affirmed.  