
    Young Berry vs. Emeline Bland.
    Under the act of 1839, with reference to married women, it being provided that the slaves owned by a feme covert, under the provisions of that act, “might he sold by the joint deed of the husband and wife, executed, proved and recorded, agreeably to the laws now in force in regard to the conveyance of the real estate of feme coverts, and not otherwiseit was held that a married woman could not charge her separate personal estate owned under the provisions of that statute, with any debt or liability, in any other mode than that pointed out in the statute ; where therefore a married woman owning slaves, under that act, executed a forthcoming bond jointly with her husband as sureties for a third party, which was forfeited, her slaves are not liable to be sold under execution on such bond; and a court of chancery will enjoin their sale.
    It seems by the common law to be now settled that a feme covert, is not liable personally for any debt, nor is her separate property in general liable in equity for the payment of her general debts, or her general personal engagements; yet the fact that the debt has been contracted during coverture, either as a principal or as a surety for her husband, or jointly with him, seems ordinarily to he held prima facie evidence to charge her separate estate without any proof of a positive agreement, or intention to do so.
    Appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    Mrs. Emeline Bland, who alleges herself' to be the wife of Maxwell W. Bland, filed her bill by her next friend in the superior court of chancery, against Young Berry, the appellant.
    She alleges that at the May term, 1840, of the Claiborne circuit court, Berry recovered judgment against P. Hooper and S. Douglass, the executors, and herself as executrix of James S. Douglass, upon a note executed by him in his lifetime. That an execution was issued upon this judgment, and returned nulla bona. That subsequently a pluries writ of execution was issued, upon which Stephen Douglass, one of the executors, gave a forthcoming bond, with the appellee, and her husband as his sureties, which bond was forfeited. That at the time of the rendition of the original judgment against her as executrix, she had ceased to be one, having, prior to its rendition and prior to her intermarriage with Bland, resigned her letters testamentary. That in February, 1841, she was married to her present husband, and that in November, 1841, when she signed said forthcoming bond, she was a feme covert. That an execution had issued upon said forfeited bond, and had been levied upon certain slaves which were her sole and separate property. She prayed for an injunction, which was granted.
    The appellant filed a general demurrer to the bill, which was overruled by the chancellor, from which decision, he has taken an appeal.
    
      R. S. Holt, for appellant.
    The sole ground of relief relied on by complainant, is the invalidity of her bond, arising from her coverture existing at the time of its execution.
    If the bond was invalid, it was so by the principles of the common law, and the right to have it annulled is one which would be recognized and enforced in a common law forum.
    The practice of vacating such bonds for defects either latent or patent, either by motion or by writ of error in the circuit court into which they are returnable, is too familiar to need an argument in proof of its existence.
    In this practice complainant had at law a plain, adequate, and complete remedy by which to accomplish all that she seeks to accomplish by a resort to a chancery court.
    If the remedy of complainant at law was thus plain, adequate and complete, she has upon familiar principles no right to the aid of equity. True, the return term of the bond had long passed before the exhibition of this bill. But if the legal remedy of complainant was by that means impaired, it was the result of her own laches against which a court of equity could not relieve her.
    But though this bond should be invalid in law, it is unquestionably a charge upon the separate property of complainant in equity. 2 Story’s Eq. 628; 1 Bro. Cha. 16; 15' Ves. 596; 17 Ibid. 365; 2 P. Wms. 144; 3 Mad. Rep. 387; 1 Tuck. Com. Ill, 112. If it operate as a charge upon the separate estate of complainant, a court of chancery would, upon a proper application, subject such property to sale for the satisfaction of the debt. Complainant then called upon the chancery court to relieve her against a demand when enforced by legal process, which the same court would have been bound •to enforce by its own appropriate organs.
    Such an appeal to the chancery court was litigious, vexatious and unjust. As complainant sought equity, she should first have done equity, by satisfying the debt with which, by solemn contract, she had charged her estate. 1 Story’s Eq. 77.
    But it is insisted that the bond of complainant was valid even at law. By the strict rules of the common law, a feme covert could not bind herself by contract, for two prominent reasons. First, because if she could have contracted, she might have been taken in execution, and her husband deprived of society, which the law would not allow. Secondly, the law having deprived her of the power of holding property in her own name and right, it was held that in depriving her of the means of making good her engagements, it was intended she should make none. Neither of these measures exist in this state. A. feme covert cannot be taken in execution here, and she can hold property in her own name and right. The reasons of the disability not existing, the disability itself does not exist; and married women are with us restored to their primitive right of contracting; a natural right which, in the absence of any social restriction, belongs to every sane human being who has attained to years of discretion. This is the view taken of the subject by courts of chancery long since, when' they held that a feme covert should not be taken in execution, and that she might hold separate property; they proceeded a step further, as consistency required, and held her capable of contracting. True, it was in the language of the books called a charge upon her separate property; but in fact it was a contract by which she pledged her property for the fulfilment of her engagements, instead of her •property and her liberty, as did the ordinary debtor at common law.
    It is therefore believed that the chancellor erred in overruling the demurrer.
    
      John. B. Coleman, for appellee.
    Mrs. Bland being a feme covert when she signed it, the bond as to her at least, is an entire nullity.
    A married woman is incapable of binding herself at law by any contract. Should she attempt to do so, as by executing a bond, note or other obligation, she can neither be sued nor can a judgment at law be rendered against her upon it. 2 Kent 168; Reeves’s Dom. Rel. 65 ; Clancy on Rights, 23. At the time Mrs. Bland signed the forthcoming bond in this case, she was a feme covert. She signed it as surety of Stephen Douglass. The effect of such signature under our statute is, that if upon the day fixed for the delivery of the property to the sheriff, it is not surrendered, the bond is forfeited, and at the very instant of its forfeiture, rises by operation of law into all the force, and has all the effect of a judgment against the parties to it. It is purely and wholly a judgment at law, and the statutory judgment rendered upon it is a judgment at law. To hold, then, that a married woman has power to execute such a bond, and to bind either her person or her property by it, must be to present the anomaly of a court of law, in violation of every principle by which it is governed, entertaining jurisdiction over a contract made by a feme covert, and rendering a judgment upon it against her, sustaining the validity of an instrument which, by the rules of law, is absolutely void, and investing it with the highest solemnity (that of a judgment) which it has power to confer.
    It is contended, however, that though a married woman cannot bind herself at law by her contract, bond, &c., and though an action at law cannot be maintained against her upon it, yet if she have separate property, a court of equity will enforce it by subjecting that property to its performance or payment.
    There is a wide dissimilarity between forthcoming and ordi
      
      nary bonds or obligations. A forthcoming bond is the creature of the statute — it is sui generis — its object, effect and operation are prescribed by the statute, and within these it is strictly circumscribed. In form it may be considered a bond, but in substance and effect it amounts to a power to confess judgment upon the non performance of its stipulations or conditions. It is conditioned for the delivery of property upon a particular day. The moment that condition is broken, its character is changed, and without any intervening steps, it ascends at once to the dignity of a judgment. No suit upon it at law is necessary, nor could one be sustained. Neither, we apprehend, could a court of equity entertain a bill to enforce the performance of it as a bond. Before a breach of its condition, such a bill could not be maintained, because the obligors are not then in default, and after the condition is broken, it loses its character of a bond, and is merged in the judgment rendered upon it. As a bond, then, a court of equity can have no power to enforce its performance by subjecting the separate estate of the wife, because its interposition can never be invoked upon it in its character of a bond. The question is therefore presented whether a court of chancery can or will lend its aid to a court of law to enforce a void judgment, or whether it will even suffer a court of law to enforce it itself. The judgment is a nullity so far as regards Mrs. Bland, and it must be a perversion of equity to attempt to infuse life into it for the purpose of subjecting her estate to its payment. We take it to be clear that a feme covert cannot be sued at law upon a bond executed by her during coverture, and that a judgment rendered against her by a court of law upon such bond would be void, and we conceive it to be wholly immaterial whether that judgment be the result of a suit regularly instituted and carried on through the court with all the necessary formalities of pleading, or whether, as in the present case, it is raised by the statutory effect given to the forfeiture of the condition of the instrument.
    The property levied upon in this case consisted wholly of slaves, the separate property of Mrs. Bland. By our statute, a married woman who is the owner of slaves, can only dispose of them by the joint deed of herself and husband, “executed, proved, and recorded agreeably to the laws now in force in relation to the conveyance of the real estate of femes covert, and not otherwise.” H. & H. 332, sect. 26. A private examination of the wife, previous to any conveyance of her slaves, is thus rendered necessary, and in the absence of such examination her conveyance would unquestionably not be binding upon her. Now, if she cannot make a direct sale or conveyance of her slaves without going through all the formalities required upon a conveyance of her lands, and if a sale or conveyance, made without these formalities would be of no binding obligation upon her, it would work a most palpable violation of the spirit and equity, if not of the letter of the law, to hold her bound by her simple signature of an instrument, the effect of which is to divest her, without a compliance with one single requisite of the statute, of every particle of the property which the law has thus endeavored to secure to her. The law is favorable to the rights of married women, and the restrictions which it imposes upon her power of disposition, are intended to guard and secure her estate from being squandered and dissipated. They are barriers intended for her protection, and if broken down, will place it in the power of the -husband or of others, indirectly and covertly, to gain possession and control of property which they are unable to acquire openly or directly.
    It is further contended, on the part of the appellant, that even if the statutory judgment rendered against Mrs. Bland is void as to her, still, inasmuch as she had an adequate remedy at law, and failed to avail herself of it, she is precluded from obtaining relief in equity.
    This position has been overruled by this court. In Sessions v. Jones, 6 How. 125, it was held that the fact that the obligor in a forthcoming bond had an adequate remedy at law, did not exclude the jurisdiction of the chancery court.
    It is also objected that Mrs. Bland, by her laches in not moving to have the forthcoming bond quashed at the return term, is barred of all remedy against it.
    While the disqualification of coverture exists, laches can hardly be imputed; and Mrs. Bland, from her signature of the bond down to the present time, has been and is a feme covert. Even had she been a. feme sole at the date of the forfeiture of the bond her failing to enter a motion to quash it at the return term, must by no means affect her rights in the present case. The bond as to her was void, and comes within the decision made by this court in the case of Nelson, Carlton & Co. v. R. H. Osgood & Co. 6 Howard.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an appeal from the superior court of chancery. The appellee, the complainant in the court below, executed a forthcoming bond jointly with her husband as sureties of Stephen Douglass. Execution issued, which was levied upon slaves, the separate property of the complainant. This bill is filed to enjoin the sale; it was demurred to by the defendant, the demurrer overruled, and the case brought by appeal to this court.

The English decisions in regard to the separate property of a married woman, and her power over it, are so far from being consistent and uniform, that Lord Eldon said, upon all the cases taken together, it was impossible to know what the law was. It seems, however, to be now settled, that a feme covert is not liable personally for any debt: nor is her separate property in general liable in equity for the payment of her general debts, or her general personal engagements. Yet the fact that the debt has been contracted during the coverture, either as a principal or as a surety for her husband, or jointly with him, seems ordinarily to be held prima fade evidence to charge her separate estate, without any proof of a positive agreement or intention to do so. 1 Brown Ch. R. 18 n.; Chassaing v. Parsonage, 5 Ves. 17; Gardner v. Gardner, 22 Wen. 526; 2 Story Eq. sect. 1400.

In this condition of the English law the statute was passed in this state, upon which we are called to place a construction. The intention of the legislature is too plain to be mistaken. The statute directs a particular mode in which a feme covert may alienate her separate property, and provides that it shall not be done otherwise. To hold that it cannot be alienated directly in any other mode, yet that it may be charged with debts, contracted during coverture, subjected to execution and sold indirectly, would be to let in all the mischiefs, against which the statute seems directed. The object in view appears to have been to guard her against her own acts, into which her affection for her husband, or his influence over her might lead her. Our duty is to follow the plain provisions of the statute, and not to defeat its end, by the interpolation of equitable exceptions. When the community know that married women with a separate estate have no power to charge it or bind it, except in the manner pointed out by the statute, contracts will be framed to meet that state of the law. There is no more reason to decide that her personal estate can be subjected to the payment of debts under this act, than that her real estate may be, under the previous law. Both are now upon the same footing. See Frost v. Doyle, and wife, ante. This is in our opinion the true exposition of, the statute, and our decision rests upon that alone.

As this disposes of the case, no other question need be noticed.

The decree is affirmed.  