
    Frost & Co. vs. William G. Doyle and Jane Doyle.
    The general rule at common law is, that a feme covert, having a separate . estate, acts with regard to it as a feme sole; but that rule is changed by the ■ act of 1839, of this state, which provides that the slaves owned by a feme covert, under the provisions of that act, might be sold by the joint deed of the husband and wife, executed, proved, and recorded, agreeably to the laws then in force, in regard to the conveyance of real estate of feme coverts, and not otherwise.
    Since the act of 1839 a feme covert cannot convey, or incumber, or charge in any manner, her separate personal estate, in any other mode than that pointed out by that act; therefore slaves, the separate property of the wife, cannot be subjected to the payment of a note made jointly by the husband and wife, not even if the note were given for articles necessary for the plantation and housekeeping purposes.
    F. & Co. filed a bill in the district chancery court, against D. and wife, alleging that D. and wife had purchased from them a quantity of merchandise, comprising articles necessary for the use of the plantation, and housekeeping purposes, for the payment of which, on a settlement of the account, they executed their joint note; that the wife of D. owned sundry slaves, given to her by her mother, as her separate property, which complainants prayed might be sold for the payment of said note : Held, that the note was not a charge on the separate property of the wife, and her slaves could not therefore be sold for the payment thereof.
    Appeal from the district chancery court; Hon. Henry Dickinson, vice-chancellor.
    The bill states, that in 1843, Jane Doyle purchased from Peter Gee & Co. a large amount of merchandise, comprising articles necessary for a plantation and household purposes. That on February 3,1844, she, with W. G. Doyle, executed a note for $31411, payable one day after date, to said Gee & Co. in payment for said articles. That the wife of W. G. Doyle was possessed of a large separate estate, consisting in part of negroes, John Young, his wife Cicily and their child Anderson, Freeman, his wife Grace and their children Henry and Catherine, Little Fed and • Rhoda; which negroes she holds to her separate use, by deed of gift from her mother Jane Estill, without trustees, and that she is conducting a plantation. That the note was given to charge her separate estate, on the faith of which the goods were sold. That in September, 1844, the note was assigned, without recourse, to complainants. The bill prays that W. G. Doyle, as trustee, by operation of law, for his wife, be decreed to pay the note out of her estate; and on failure, that so much of said estate be sold as will satisfy the debt, and for general relief.
    The defendants filed a general demurrer, for want of equity in the bill, which was overruled. An answer was then filed, admitting the execution of the note, but denying that Mrs. Doyle purchased the goods, &c., or that she in any way induced Gee & Co. to sell the same on the faith of her separate property. W. G. Doyle says he purchased on his own responsibility, and that his wife was in no way a party to the contract. Some time after the purchase, Gee & Co. sent their clerk to the house of the defendants, to make a settlement. W. G. Doyle was found to be indebted to the amount of the note, and the clerk insisted that Mrs. Doyle should join her husband in making the note. At the earnest solicitation of said clerk she reluctantly signed it, without any previous obligation todo so. She never made any contract rvith Gee & Co. with a view to bind her separate property. The deed of gift from the mother of Mrs. Doyle, to the slaves, is filed as an exhibit to the answer of the defendants; they deny that Mrs. Doyle has any other title to the slaves than is conferred by that deed, and they aver that they are informed that she has no such separate property in them under said deed as complainants suppose, and that she could not encumber her title except by joint deed with her husband, made pursuant to the provisions of the act of 1839, commonly known as “the woman’s law.” No evidence was offered on either side, and the cause was set for hearing on the bill, answer, and exhibits. At the June • term, 1845, a decree was rendered dismissing the bill, at the costs of complainants. From that decree the complainants prayed an appeal to this court.
    
      L. Lea, for complainants.
    The important fact in this case is, that Jane Doyle signed the note. And the obvious inquiry is, for what purpose did she sign it? It must be presumed that she had some object in view; and it is evident that object was to give a security in some way for the payment of a debt. This could only be done by binding something. She could not bind her person; and the conclusion must be, that she intended to bind her property. Otherwise, the act of signing the note was nugatory, and the note itself, as to her, can have no validity or operation whatever. I admit that Jane Doyle must, in order to charge her separate property, have so intended. But I contend that the making of the note is prima facie evidence of such intention; and it is incumbent on her to prove the contrary. Her mere denial is not sufficient. It is well remarked by Judge Story, that “ the natural implication is, that if a married woman contracts a debt, she means to pay it; and if she means to pay it, and she has a separate estate, that seems to be the natural fund which both parties contemplated as furnishing the means of payment.” 2 Story’s Eq. 628. There is no evidence that Jane Doyle signed the note as surety for her husband. It is a joint note, and signed first by her. She is prima facie primarily liable; and there is no necessity for proceeding, in the first instance, against Doyle, or for showing that he is insolvent.
    
      J. S. Johnson, for appellees.
    The separate property of the wife has never been held liable to the payment of a promissory note executed by her, except upon the ground that she could not bind herself personally by such an instrument, and must, therefore, have intended that it should bind her property. This presumption of law is expressly negatived by the pleadings in this case. It is therefore contended that, even if Jane Doyle had a separate personal estate, it could not be subjected to the payment of this note.
    
      2. It appears, from the pleadings in the cause, that the property of the wife, specified.in the bill, is held under the provisions of the statute of 1839 known as “the woman’s law.” It is clear that the statute of 1839, was not intended merely to protect the wife against any improper act of her husband in disposing of her property, but also to guard her against the consequences of her own acts. It has been long settled that a feme covert cannot convey or incumber her separate freehold interest in real estate, so as to defeat the heir at law. Clancy on Rights, 282, 291. The statute of 1839 throws the same safeguards around the property of a feme covert, in slaves, by requiring the same formalities in the disposition of the feme covert's estate in slaves. How. & Hutch. 332. In the case of Jaques v. The Trustees of the Methodist Episcopal Church, it is decided that the wife, by antenuptial contract, can limit her power of disposition over her estate. 17 Johns. R. 584, 585. If, by the antenuptial contract of the parties, the wife’s power of disposition over her separate estate can be limited to a particular mode, it seems very clear that such limitation can be made by statute. It seems exceedingly clear that the note cannot be a lien on the slaves specified in the bill, because neither of the makers of the note could, by express deed, or in any other way than that prescribed by statute, create such lien. If Jane Doyle could not, by express deed, create a lien on the slaves specified in the bill, the proposition, that she could do so, by so slight an act as the mere signing a note, under any undue influence, that might control her at the time, without the formalities required by the statute, to complete a conveyance of such slaves, seems too absurd to require serious consideration. It cannot be pretended that complainants were defrauded, for they were not misled to their injury. Jane Doyle’s signature to the note could in no possible manner injure Gee & Co.
    3. Complainants do not charge that W. G. Doyle is insolvent, nor do they show any other excuse whatever for coming into this court, except the pretended liability of Jane Doyle. It is clear, therefore, that their remedy is at law, and against W. G. Doyle, alone.
    
      4. But, suppose the foregoing positions to be all wrong, it is still clear that the court could not decree a sale of the slaves in question, to satisfy the note executed by Doyle and wife. It appears, from the pleadings in the cause, that Jane Doyle executed the note merely as a surety. Now, suppose that she could bind either herself, personally, or create a lien on her property, in this way, it would follow, under the statute of our state, (How. & Hutch. 596, 597,) that the property of G. W. Doyle, the principal, must first be exhausted, before recourse could be had against that of the surety. If a judgment at law had been obtained against these defendants, each being fully competent to make such contract, the vice-chancery court would enjoin a levy on the property of Jane Doyle so long as W. G. Doyle had any effects subject to the satisfaction of such judgment. It seems exceedingly plain, then, that the chancery court ought not to do, by its own decree, what it would enjoin, and restrain a court of law from doing. See How. & Hutch. 596, 597.
    
      William and William G. Thompson, on the same side.
    There is but a single question in this cause. Can a married woman, holding property under the statute of 1839, bind it as fully and in the same modes as she could bind her separate property, held independently of the statute, under the rules of the common law ? The rules of the common law will not govern, unless the estate of the woman in property under the statute be similar to the estate held by her at common law, and to which such rules have been applied. Now, to what character of estate in the married woman have the rules of the common law on this subject been applied ? Could she bind, by her contracts, any property, except such as she held to her sole and separate use 1 Under the common law she could not hold personal property, except to her sole and separate use. Whatever interest or estate in personal property she might take, be it a life estate, or whatever else, it would vest immediately, and absolutely, in her husband, if she took it not to her sole and separate use. But, under the statute, she does not hold her personal property to her sole and separate use. It is wholly a different estate from that which, under the common law, she could bind by her contracts. How, then, can the rules of the common law on the subject be applied to this case? There may be some difficulty in determining the exact nature of the estate held by a married woman, in personal property, under the statute. It cannot, however, be considered, in any view, greater than the estate a married woman holds in land owned by her before the marriage. Under the common law she could not, by contract, bind such estate in land. How, then, can she bind her estate in personal property, held under the statute?
    This case turns upon the question, whether the wife can, by her separate contract, bind the property held under the statute. The bill proceeds entirely upon her contract. The husband is not liable in proceeding in equity, on account of his signing the note. His liability is only legal; and he can only be proceeded against in law. The case then stands precisely as though the wife alone had given the note.
    The law can sell property, only where the party holding the property can sell. This proceeding is, substantially, against the wife alone. The husband is only a nominal party. He is not, on his own account, liable in equity. The object of the bill, then, is to procure, through the law, a sale of the property against the wife. But if she cannot sell it the law.cannot sell it for her. According to the statute the property cannot be sold, except by the joint deed of the husband and wife.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

The appellants filed their bill in the district chancery court against the appellees, to obtain payment of the amount of a promissory note out of the separate property of Mrs. Doyle, the note having been given by the wife, jointly with her husband. The bill alleges that Jane Doyle purchased r of Gee & Co. the assignors of the note, a quantity of merchandise, consisting of articles necessary for the use of the plantation, and for housekeeping purposes, and that, on a settlement of the account, she executed the note. That she has a considerable separate property, consisting of slaves, which she acquired by deed of gift from her mother.

The respondents first demurred, but the demurrer was overruled, whereupon they answered. The answer denies, in the most positive manner, that the said Jane purchased the goods, or made any contract whatever, and avers that they were purchased by the husband alone, on his individual responsibility, and also that the wife never intended or promised, either before or since the purchase, that her separate property should stand charged with the payment. The answer further states that the note was given under the following circumstances: the clerk of Gee & Co. brought the account to the house of respondents for settlement, and requested that the wife should join her husband in a note for the amount due. This she at first refused to do, but ultimately reluctantly consented, not for the purpose, or with the intention, of charging her separate property. They admit that the wife has the slaves mentioned in the bill, which she acquired by deed of gift from her mother. The deed is made an exhibit, and bears date the 24th of March, 1841.

No proof was taken on either side, and on the hearing the vice-chancellor dismissed the bill. If the note constituted a valid charge on the property of the wife, and the case was sufficiently made out, the bill was improperly dismissed.

The deed of gift bears date subsequent to the act of the legislature, entitled “ an act for the protection and preservation of the rights and property of married women,” and on its face makes reference to the act. The provisions of that law must be regarded as controlling the question before us. From its title it would seem that something more was intended than to secure merely a separate ownership, and its provisions seem to have been framed with the view of restraining the wife from conveying, or disposing of her personal property in the usual modes of transfer. It secures the property owned before coverture, or acquired afterwards by conveyance, gift, inheritance, distribution, or otherwise, to the separate use of the wife, subject to the control of the husband, who is also entitled to the profits. The last section declares that slaves owned by a feme covert, under the provisions of the act, may be sold by the joint deed of-the husband and wife, executed, proved, and recorded agreeably to the laws then in force, in regard to the conveyance of the real estate of feme coverts, “and not otherwise.” The mode of transfer is not only pointed out by reference to another law, but there is a prohibition as to any other mode of conveyance. In designating the mode of conveyance, and in limiting the capacity to convey to the prescribed mode, the legislature seem to have had it in view to protect the wife against the undue influence of the husband and others. The general rule at common law is, that a feme covert, having a separate estate, acts with regard to it as a feme sole; a rule which this statute must have been designed to limit, by requiring that the husband should join in the conveyance, and that it should be made under certain prescribed ceremonials. If she cannot convey the absolute title, except in the prescribed mode, it seems to follow, that, in accordance with the spirit of the act, she cannot incumber the property by charges, in any other way than that pointed out. The object of the act would be defeated in many instances, by holding that her contracts by bonds or notes amounted to a charge. But even if we were disposed to follow the English decisions on this subject, to their utmost extent, it is not clear that this particular contract amounted to a charge. The case of Hulme v. Tennant, 1 Br. C. C. 16, in which the separate property of a feme covert was held liable for the payment of a bond executed by the husband and wife, gave great dissatisfaction, and was supposed by Lord Eldon to have gone too far. The greater part of the money, in that case, was received by the wife. Bulpin v. Clark, 17 Vesey, 365, is the only other case that bears a close resemblance to the present, it being a case in which the separate property of a feme covert was held liable for the amount of a promissory note made by husband and wife; the note, however, was made on the contract of the wife alone. In this case the allegation that the note was given on the contract of Mrs. Doyle, is flatly denied by the answer, in which it is averred that she reluctantly consented to sign.it, and there is no-proof on the subject. But we deem the statute as conclusive on this subject, if not by its letter, at least in spirit. The decree of the vice-chancellor must be affirmed.  