
    Moses Solomon vs. Sarah Garland.
    Law. No. 20,682.
    S Decided November 20, 1882.
    
      I The Chief Justice and Justices Cox and James sitting:.
    1. The effect of sections 727 and 72S of the Revised Statutes relating to the District is to render a married woman competent to act in tier character of proprietor of her separate estate, just as any other proprietor may act. Not only may she give away, sell, lease or lend her separate property, but she may charge it with any kind of lien, and she may do so by the same acts or contracts which would operate in the case of any other proprietor.
    2. In addition to the absolute contract power given her by these two sections, in casos w'here her separate property was the subject-matter of the contract, Congress went further and gave her in the next section a like power in certain other defined cases where the subject-matter of the contract was not her separate property, but something “having relation ” to it, although it was a matter in which, previous to the contract, she had no interest or right.
    -3. The question whether the alleged contract is about a matter having the required relation to her separate property, is a question of law.
    •4. That is not, within the meaning of the statute, a matter having relation to her separate property, when there is a total absence of all right to claim, as her property, that to which the subject-matter of the contract is alleged to have relation.
    3. But this ruling is not to be taken as meaning that, in ascertaining the existence of a separate property to which the matter of contract must liave relation, the question whether her title is a good and valid one will be tried.
    ■6. The furnishing of a house belonging separately to a married woman is a matter having relation to her separate property within the meaning of the statute.
    7. An executory agreement by a married woman to purchase a house, is-binding upon neither party. She will not, therefore, by virtue of such agreement, be the owner of a separate estate in relation to which-she may make a contract.
    8. Whether a married woman who takes a lease of a house, and thereby acquires a term, may contract for the furnishing thereof, as a matter-having relation to her property in the term, quaere.
    
    9. A married woman being in the occupation of a house and premises, it was contended that, as she could not be dispossessed by the owner-without thirty days’ notice, she was, therefore, the owner of a term in the premises to that extent; that such a term was her separate property, and that the purchase of furniture to furnish this house was & matter having relation to her right to possess it for this term.
    
      Held, That the thirty days’ notice is a limitation upon the landlord’s remedy, and that the occupation meanwhile being on suffrance has not the quality of a term; it is not assignable, and has none of the traits of property, and therefore cannot be treated as the separate property of a married woman.
    10. The statute gives to a married woman power to make certain contracts when she actually has separate property, but she is not given that power by merely pretending to have such property. The question is one of legal capacity, and a fraudulent pretense that the capacity exists cannot create it. The doctrine of estoppel has, therefore, no-application to a-case of that kind.
    11. A married woman made a purchase of furniture. The contract had no relation to her separate estate, but she promised to pay for the goods out of the 'rents derived from a house which was her separate property.
    
      Held, That at law this was a mere promise to pay money, and that a . married woman’s promise to pay for that which does not relate to her separate property cannot be enforced. Whether such a promise would operate as a charge upon her rents and could be enforced in equity,. quaere.
    
    STATEMENT OE THE CASE.
    Motion for a new trial on exceptions.
    This was an action to recover of the defendant, a married woman, a balance due upon a purchase of furniture by her. The declaration alleged the ownership by defendant as her sole and separate estate, of a house on Sixth street, in the city of .Washington, and a purchase of furniture by her from plaintiff for use in said house, upon a promise of the defendant to pay for the same out of her separate estate. Upon the-trial it was shown that the defendant was a married woman living with her husband and owning in her own right in fee-simple, as her separate estate, the house and premises No. 107 Sixth street, in Washington. In the early part of 1877 there were large dealings in furniture between plaintiff and defendant, and when the account was settled a balance of $160 was found due the plaintiff.
    In July, 1877, defendant went to plaintiff’s store and asked! a further credit. She stated at the time that she was the owner of a house on Corcoran street, and of other property ; that she received $300 a month rent for her Sixth street, house, and that she would pay the plaintiff $50 a month out of such rent until her account was squared.
    On these representations, goods of the value of $311.27 were then sold to her. Part of the goods thus sold, comprising a Brussels carpet and some minor articles charged at $125, were delivered at the Sixth street house, the balance was delivered at the house on Corcoran street.
    It was shown that at the time of the sale and delivery of the furniture, the defendant had a parol agreement for the purchase of the Corcoran street house, and was in occupation thereof, but the purchase of the property was never perfected by her. Subsequently to July, 1877, the defendant paid on the account $320, leaving still due $151.27, for which this suit was brought.
    This being all the evidence offered, the defendant thereupon prayed the court to instruct the jury that:
    “ The plaintiff' is not entitled to recover in this suit for any furniture sold for the use of, and delivered at the house on Corcoran street, there being no proof that said house was the separate estate of the defendant.”
    Which prayer being refused, the following was then offered:
    
      “ That the purchase of household furniture by a married woman, living with her husband, which is not necessary to the beneficial enjoyment of her then existing separate estate, is not a contract in a matter having relation to her sole and separate estate.”
    This was also refused, as was likewise the following :
    “ That a married woman, living with her husband, cannot render herself personally liable on an oral contract for the purchase of household furniture which is not necessary to-the beneficial enjoyment of her previously existing separate estate.”
    All the prayers of the defendant being refused, the court then charged the jury substantially:
    “ That if they believed from the evidence that she bought the goods on the credit of her separate estate, and so stated at the time, it is immaterial where they were delivered; and if the defendant, being the owner of separate estate, purchased this property, stating to the person from whom she bought, that it was for her separate estate, it was enough, and she is responsible in this action. She is just as liable for a false and fraudulent statement as for a true one.”
    The jury then found for the plaintiff for the amount claimed, and the case came to the General Term on exceptions by the defendant to the refusal of the court to instruct the jury as prayed.
    Birney & Birney for plaintiff.
    Hasner & Maddox for defendant.
    This case presents the question whether the purchase of household furniture by a married woman, on open account, with a promise to pay for same out of the rents of a house owned by her, in her own right, as a separate estate, creates an obligation on which she will be liable in a suit at law. The case does not come within the requirements of the married woman’s act, as expounded by this court in Harmon vs. Garland, 1 Mackey, 1. There, in the verdict, the jury found that “ said furniture was bought and used by defendant for furnishing a house forming part of her separate estate, which house, so furnished, said defendant thereafter rented.” On this state of facts, the court says : “ We think it a fair inference from the verdict in this case, that the defendant, in order to rent the house to advantage, had to furnish it.” In other words, that it was necessary for the beneficial enjoyment of her then existing separate estate.
    
    There was no room for such an inference here. The evidence offered showed simply a purchase of furniture and a delivery of same — part at a house on Sixth street, the balance at a house on Corcoran street. There was not a scintilla of proof that the defendant at the time of the various purchases, stated even that they were for the purpose of furnishing houses belonging to her. It cannot be inferred from this that the furniture was necessary “ in order to rent her houses to advantage.” Non constat that the purchases were not made for the purpose of engaging in business as a trader in furniture. For these reasons it follows that there was error in refusing to instruct as prayed in the second and third prayers.
    117
    The case would rather fall within the rulings as laid down in Rich vs. Hyatt, 3 Mac Arthur, 536, where it was held that the statute confers on married women no new rights in respect of the means of acquiring property, and that it does not authorize her to make an executory contract for the purchase of another’s estate. Or in Schneider vs. Garland, 1 Mackey, 350, where it was held that it is not enough to render her liable at law to say that the goods were sold on the faith and credit of her separate estate, and on her promise to pay out of said estate. The same ruling was made in McDermott Bros. vs. Garland, 1 Mackey, 496.
    The court’s charge to the jury was almost identical with that in Schneider vs. Garland, supra, with the additional infirmity that there is in the evidence adduced no proof that she stated to the person from whom she made the purchase, that “ it was for her separate estate.” The facts disclosed no such statement.
    The charge also touches upon the question of estoppel, and the same point is raised by defendant’s first prayer.
    It would seem that estoppel, either by deed or in pais, does not apply to a married woman, she being supposed to be under the compulsion of her husband, and therefore unable to assent to a contract. Lowell vs. Daniels, 2 Gray, 168; Bank vs. Lee, 13 Peters, 119; Kun vs. Coleman, 39 Pa. St., 299; Adelphi Loan Ass. vs. Fairhurst, 9 Ex. (W. H. & G.), 422.
    It certainly could not be carried to the extent of creating a separate estate by estoppel, which is necessary to meet the ■exigencies of this case. This would be a veritable legal absurdity.
    But the doctrine of estoppel has little or no application to the case. It is in evidence that the defendant, at the time of asking a further credit, stated to the plaintiff that she was the owner of a house on Corcoran street. Ordinarily it would still have been necessary for the plaintiff, in order to maintain his suit, to show that this house was her sole and separate property within the purview of the statute. In this he not only failed, but actually showed that the defendant never had the legal title to the property. Further than this, there is no averment in the declaration, nor was there anything in the proof to show that defendant, at the time of purchase, told the plaintiff that the furniture was intended for use in the Corcoran street house. This action is brought only for goods sold for the use of and delivered at the Sixth street house. Any question over furniture delivered at .the Corcoran street house was coram nonjudice.
    
   Mr. Justice Jambs

delivered the opinion of the court.

It appears by the bill of exceptions that the defendant is a married woman, living with her husband ; that, at the time of the transaction on which this suit is based, she owned, as her separate estate, a house and lot on Sixth street in Washington; that in the early part of the year 1877 there were large dealings in furniture between plaintiff and defendant, and that upon settlement, of that account a balance of $160 was due to plaintiff'; that in July of that year defendant applied to plaintiff for a further credit; that she stated to plaintiff at that time that she was the owner of a house on Corcoran street, in this city, and of other property; “that she received three hundred dollars a month rent for her Sixth street house, and that she would pay the plaintiff fifty dollars a month out of such rent until her account was squared; ” that “ on these representations, goods of the value of $311.27 were then sold to her ; ” that “ part of the goods thus sold, comprising a Brussels carpet and some minor articles, charged at $125, were delivered at the Sixth street house, and the balance was delivered at the house on Corcoran street.”

“It was shown that at the time of the sale and delivery •of the furniture, the defendant had a parol agreement for the purchase of the Corcoran street house, and was in occupation thereof, but the purchase of the property was never perfected by her. Subsequently to July, 1877, the defendant paid on the account $820, leaving still due $151.27.” It is stated by the bill of exceptions that this was the whole ■of the evidence offered at the trial.

Thereupon the defendant prayed the court to instruct the jury: 1st. That “ the plaintiff is not entitled to recover in this suit for any furniture sold for the use of and delivered at the house on Corcoran street, there being no proof that-said house was the separate estate of the.defendant.” 2nd. That “the purchase of household furniture by a married woman, living with her husband, which is not necessary to the beneficial enjoyment of her then existiug separate estate, is not a contract in a matter having relation to her sole and separate estate.” 3rd. That “ a married woman, living with her husband, cannot render herself personally liable on an oral contract for the purchase of household furniture which is not necessary to the beneficial enjoyment of her previously existing separate estate.” All of these prayers were refused and exceptions were taken.

After refusing these prayers, the court charged the jury .substantially:

“That if they believed from the evidence,that sheathe •defendant) bought the goods on the credit of her separate estate, and so stated at the time, it is immaterial where they were delivered; and if the defendant, being the owner of .separate estate, purchased this property, stating to the person from whom she bought that it was for her separate estate, it was enough, and she is responsible in this action. .She is just as liable for a false and fraudulent statement as for a true one.” To this instruction defendant duly excepted.

It is convenient to state generally the conclusions of the majority of the court upon the facts presented by the bill of exceptions, and to consider afterwards how far the rulings at the trial conform to them.

Section 727 of the Revised Statutes for this District define the status of what is there called the “sole and separate property” of a married woman, and section 728 states her power of control over it. The effect of one of these provisions is to absolve the property itself, and of the other to absolve the wife, as owner of it, from the control of the husband. She is made competent to act, in her character of' proprietor, just as any other proprietor may act. Not only may she give away, sell, lease, or lend her separate property, but she may charge it with any kind of lien, and she may do so by the same acts or contracts -which would operate in-the case of any other proprietor. If the act had stopped there, a married woman’s contract power, absolute and complete as it would have been within its limits, would nevertheless have been strictly limited to control over the res known as her separate property; and she would have remained, in all other respect's, under the disabilities imposed upon her by the common law. But Congress went further, and, in addition to absolute contract power in cases where-her separate property was the subject-matter of the contract, gave her, in the next section, a like power in certain other defined cases, where the subject-matter of the contract was not her separate property, but something “ having relation” to it. In respect to this matter, also, she was-empowered by the statute to make a contract, although it was a matter in which previous to such contract she had no-interest or right.' The common law was altered by the-statute only to this extent, and in matters not having such “ relation,” married women in the District of Columbia were-left as they had been placed by the common law. As this-is a question of legal capacity, the question whether the alleged contract is about a matter having the required relation, is necessarily a question of law, and addresses itself to the court. In the cases which have heretofore arisen under this statute, this question has been so treated. We take the rule, then, to be this, that when the statute gives to a married woman absolute contract power in a matter having relation to her sole and separate property,” it contemplates, first, the existence of something which is capable of being regarded, either at law or in equity, as her sole and separate property ; and, secondly, that the matter shall have relation to that property. We do not mean that, in ascertaining the existence of a separate property to which the matter of contract must have relation, the question whether her title is a good and valid one will be tried. It is enough to say for the present that there must not be a total absence of all right to claim as her property the property to which the matter in contract is alleged to have relation. In such case the matter claimed to have relation cannot be held, within the meaning of this statute, to be a matter having relation to her sole and separate property. It is obvious that this power to contract in relating matters was given in order that she might have the largest and completest enjoyment of her actual property. In order that she should have this, it was not enough that she should merely be able to dispose of that property; she must be able to make contracts which secure to her the full use and enjoyment of it while she holds it. But the incidental or relating power is not to be construed to apply where the principal power cannot. In giving her power to contract in matters having relation to her separate property, Congress cannot have intended that she might exercise it in cases 'where she had nothing over which she could exercise the disposing power given by the previous provision of the same statute. It could not have been intended, by this additional contract power, to secure or enlarge her enjoyment of what she could not pretend to have at all. The whole statute must, of course, be construed together; and as the provision giving her absolute control over her separate property contemplates the actual existence of such property, so the provision giving her power to contract in matters relating thereto contemplates the same thing. Such matter must relate to something which comes within her power of direct control. Let us apply these principles to the facts of the case before us.

Undoubtedly the furnishing of a house belonging separately to a married woman is a “ matter having relation ” to her separate property within the meaning of this statute, and this court has so held. Without power to contract in such a matter she could not enjoy, as the statute intends she shall, the full benefit of proprietorship. She could own and sell, but could not use, her house. But does the defendant’s purchase of furniture for the Corcoran street house come within this principle ? Can that house be treated as in any sense her property, so that another matter may have the relation to it intended by the statute ? Did she acquire even a pretence of title by the alleged executory contract for its purchase ? We are of opinion that the so-called contract was not, as to either party, a contract at all.

The' statement of the bill of exceptions, that the defendant “ had a parol agreement for the purchase of the Corcoran street house, and was in occupation thereof,” is imperfect. It does not show that she had paid for the house, and only lacked a conveyance to perfect her title. We must suppose, therefore, that there was only a promise on one side to sell and on the other to buy, and that Mrs. Garland’s promise to purchase was the consideration of the promise to sell. This presumption is confirmed by the fact that the plaintiff took pains to prove that she was in possession. It is not shown that she entered under the agreement of sale, and it is immaterial whether she did so or not. Part performance of a contract which both parties ai’e competent to make may relieve the party performing of the operation of the Statute of Frauds, and thus enable him to insist upon performance on the other side ; but this defendant’s part performance of a promise which the law disabled her to make would not bind her to a complete performance, or make her promise valid. She could not become a legal promissor by acts if she could not by a written and express promise. This would be to make her competent to promise, because she pretended to have that power. Legally, then, there was no promise to purchase the Corcoran street house.; the promise to sell was without consideration and could not be enforced. In other words, there was no contract for the sale and purchase of the Corcoran street house. So familiar a principle hardly calls for the citation of authorities, and we shall refer to but one. “ Courts of equity,” says Story (Eq. Jur.,787), will not carry into specific execution any merely nude pacts or voluntary agreements, not founded upon some valuable or meritorious consideration ; nor between parties not sui juris ■or competent to contract, as infants and fem.es covert.” See, also, Story’s Eq., sec. 723.

It is objected that, in applying this clause of the statute, the court will not consider whether the property, to which another matter is said to relate, is held by a good title* That proposition, as stated, is correct, but it is not involved in this case. This defendant had no pretence of title, inasmuch as her claim of equitable title must rest upon an ex-ecutory contract which the law disabled her to make, and which she could not possibly enforce. She was simply a stranger to what is alleged to have been her separate property.

A pretence of separate property has been made, however, upon another ground. Tt was suggested that, being lawfully in possession, she could not be dispossessed by the owner without thirty days’ notice ; that she may be said, therefore, to have a term in the premises to that extent; that such a term was her separate property, and that the furnishing of •tKe house had relation to her right to possess it for this term. It is not necessary to consider here whether a married woman who takes a lease of a house, and thereby acquires a term, may contract for the furnishing of that house as a matter having relation to her property in the term. It is enough to say that no term is shown here. The thirty days’ notice is a limitation upon the landlord’s remedy, and the occupation on sufferance has not the quality of a term. It is not assignable ; it has none of the traits of property, and therefore cannot be treated as separate property of a married woman.

It was also urged in argument that, as the furniture for the Corcoran street house was sold on the strengh of her assurance that it was her separate property, she is estopped to deny such ownership. We have already said that this statute gives to a married woman power to make certain contracts when she actually has separate property, and has not given, it when she merely preténds to have such property. To say that she must be deemed actually to have separate property by reason of an estoppel of this kind, is merely a misapprehension of the principle of estoppel as applied to estates. This is a question of legal capacity, and a fraudulent pretence that the capacity exists cannot create it. The case in which she has power to incur a personal obligation does not come into existence by operation of an authorized attempt to incur it.

We have said that a married woman may charge her separate property with a lien, and that she may do so by the same acts or contracts which would operate in the case of any other proprietor ; and it has been suggested that, upon this principle, the defendant’s promise to pay fifty dollars a month out of the rents of her Sixth street house may be treated as an appropriation of, was charging a lien upon those rents, in consideration of the sale to her. If that be so, such a charge cannot be enforced in this action for the price of the goods. At law such a promise can only be treated as a mere promise to pay money; and a married woman’s mere promise to pay for that which does not relate to her separate property cannot be enforced. Whether a charge upon defendant’s rents could be enforced in equity, we need not decide.

With these views we must reverse the judgment,

Mr. Chief Justice Cartter

dissenting :

There are two things unembarrassed in this case, and not inconsistent with each other. One is, that the defendant was a feme covert with a separate estate. There is no trouble about this ; where it was and what it was is another question. And she had been advanced, under the law, to the condition of a feme sole, in dealing with her separate estate. That proposition is also unembarrassed. The plaintiff in this case sold her this furniture upon the credit of her separate estate, and she took it — it was delivered to her and she took a part of it to her house upon Sixth street and a part of it to her house upon Corcoran street — whatever title she held it by. She said it was her separate property, and upon the faith of that declaration she obtained the furniture in question, and in my opinion the logic involved in the power to make a contract makes the party to it amenable to all the intendments of the law, whether male or female, feme covert or feme sole; that the philosophy of privilege and of conduct necessarily blends with the administration of justice when you have a party capable of making a contract ; that there is no new set of rules to_ control rights of femes covert enlarged to the condition of femes sole as peculiar to them, but they assume with their right all of the obligations of the law, and to the parties with whom they contract, as effectually as though they were of the masculin'e gender.

It is a masculine act; it is the exercise of masculine authority over property, and it never entered into the contemplation of the law that there was to be a new mode of administering rights under it. This being so, this woman applied to the plaintiff to buy his goods for and on account of her separate estate ; she got them ; she has them now ; and the question is, whether they shall be charged, not upon her husband, but upon her separate estate, that has been enlarged and enriched out of the substance of the plaintiff:'. It has become a very interesting issue in this case what the precise degree of the title to her property is, whether equitable or legal, valid or void, and we are introduced into an equity examination to determine the real character of the title. Now does this law contemplate any such thing ? Does it contemplate, in a transaction over personal property, where one party applies to another to buy or sell, that the coprt, in ascertaining whether she is liable as a feme sole or not, shall ascertain - whether the t’s are crosséd in the deed that constitutes -the title to her property, or whether it is by leasehold, or whether it can be enforced in a court of equity ? She said it was her property and she was in the occupation of it as a domicile ; the furniture went to that domicile and was employed by her there ; why not believe her! The law would compel you to believe a man, why not believe a feme sole? The law would not permit a man, after buying property on account of other property, to say to the party that he purchased it of, “My title is not very good-to this property ; in fact, I haven’t got any ; it is only a possessory title that I have, and I am liable to be turned out at any time by process of law.” Now the law would not listen for a moment to a man with that plea ; the law would say to him, “You said it was your property ; you lived in it and occupied it; you took the plaintiff’s goods into it as your separate property, and the law will not permit you to deny it.” Now, I cannot discover, with all the reflection I have given the subject, why the same rule should not apply to this case. I do not understand why a woman should be permitted to deny with impunity when a man may not.

I think the doctrine of estoppel is applicable in this case, although it may be that the justice below laid down the rule a little too broadly, for this court has said — and I think properly — that the contract which a feme covert is enabled to make must relate to her separate estate. The purchase of furniture would relate to it; the purchase of a halter for a horse or oats to feed him would relate to it; tools for a farm would relate to it, because they enter into the enjoyment — the occupation of the property. B ut it seems to be indicated in the charge of the court below, that it is only necessary to show that she'said the purchase was on account of her separate estate, and that she would be estopped by that declaration. Perhaps this is carrying the rule beyond what has been held by the court, and beyond the intendment of the statute ; but it did not affect the merits of this case, for here you have a separate estate revealed to the court. It matters not whether it was on Sixth street or Corcoran street where one part of this furniture went and where another part went; here you have the property in esse. I care not what the estate is, whether it is a possessory estate or a leasehold estate, provided it is a separate estate, and where that is shown then any declaration of the party inconsistent with the existence of that estate' comes with all the obligation that it does upon anybody else. These are the considerations that advise my dissent to this opinion.  