
    Minerva Doty et al. vs. William S. Mitchell.
    
      It seems that a married woman as to her separate estate is a feme sole only so far as the instrument conferring the separate estate constitutes her such; and in the disposition of such estate the married woman is restricted to the particular mode pointed out by the instrument conferring that estate.
    It seems, therefore, to be immaterial what the intention of a married woman in contracting a debt may have been, with reference to binding her separate estate for its payment; if in contracting that debt she has not proceeded in the mode pointed out in the deed of settlement, her separate estate will not be bound, even though she intended to bind it.
    It seems that a party attempting to subject the separate estate of a married woman to the payment of her debt to him, must show that she has made her separate estate liable in the mode pointed out by her marriage settlement.
    The cases of Berry v. Bland, 7 S. & M. 83, and James v. Fisk, 9 S. & M. 151, cited to show that the question of the power of a married woman over her separate estate to deal with it as a feme sole, was not decided in them.
    By marriage settlement in 1828, the property of D., derived by will from her father, was settled upon her by deed, which secured to her the enjoyment of the rents, issues and profits thereof, to be disposed of at her will and pleasure, so as not to be under the control and disposal of the husband, or in any way liable to his contracts, debts, or engagements ; and it empowered her by deeds in writing executed in the presence of two or more credible witnesses, to alter and revoke any of the trusts contained in the instrument of marriage settlement, and to create, limit, or appoint any new or other trusts concerning the same, or so much thereof of which a revocation should be made. D. in December, 1841, and January, 1842, executed jointly with her husband, two bills, payable to M.; who sought, by bill in chancery, to subject her separate estate to their payment, alleging that the consideration of the bills single passed to her, the contracts made and credit given to her on the faith of her separate estate, and that she made the notes with the intention of subjecting her separate estate to their payment. Held, that the bill of M. must be dismissed; as he had failed to show that D. had charged her separate estate in the mode pointed out by the marriage settlement.
    Appeal from the vice-chancery court at Carrollton; Hon. Henky Diceinson, vice-chancellor.
    
      WilliamS. Mitchell filed his bill against Minerva Doty, Jacob J. Doty, and Lot S. Humphrey, alleging that in the year 1841 he rented to Jacob J. Doty and his wife Minerva a tract of land, and at the same time hired to them five negroes for the sum of one thousand dollars, to be paid on the first day of January, 1843, the expiration of their year of tenancy ; and shortly after-wards sold to them a quantity of corn and fodder for the use of their plantation, for the sum of four hundred and seventy-one dollars and sixty-eight cents, to be paid on the first of January, 1843; for these sums he took their two notes, exhibited with the bill. The notes were in form exactly alike; the following is a copy of one. of them:
    “ On or before the first day of January, 1843, we promise to pay William S. Mitchell or order, one thousand dollars for the rent of one hundred and forty acres of land and the hire of five negroes; as witness our hands and seals this 31st day of December, 1841. MineRva Doty, (seal.)
    J. J. Doty, (seal.)
    “I guarantee the payment of the within note; 31st December, 1841. Lem. Doty.” ■
    The bill further states, that the complainant rented out the plantation and negroes, and sold the corn and fodder solely on the credit and at the solicitation of Minerva Doty, who had a separate property of her own, consisting of negroes; her husband having no control over it, and being himself wholly insolvent ; that Mrs. Doty signed these notes with the approbation of her husband, and with the understanding that they were to be a charge upon her separate estate; which the bill prays may be subjected by sale to their payment. An amended bill set out the names of the slaves constituting the separate property, and stated that Lot S. Humphrey claimed title as trustee for Mrs. Doty to them.
    Mrs. Doty answered; she denied that she'had ever made the contracts of hire and purchase as alleged in the bill, or ever been consulted with reference thereto; she was at the time the contracts were made, in a different county. She admits her husband made them, and on his representations she signed the notes; but denies that by so doing she ever intended to pledge or in any manner bind the estate which she holds separately from her husband; and she submits to the court whether she could in that way bind her separate estate; she denies that the contracts were made upon the credit of her name or of her estate.
    She admits that she holds the separate estate as charged in the bill; which she derived by will from her father, Lot Humphrey, of Onslow county, North Carolina; a copy of which will she exhibits. Previous to her marriage with Jacob J. Doty, while sole, she entered into a marriage contract with him, to which Daniel Ambrose was a party; and subsequently entered into another agreement, to which Ambrose, Lot Humphrey, who was her brother, her husband and herself, were parties. Copies of these contracts she exhibits with the bill; and she submits whether in view of this will and these agreements, she could bind or pledge her estate in the manner set forth in the complainant’s bill and amendment; and she demurs to the relief asked.
    The fifth item of the will, made October 6th, 1823, of the father of Mrs. Doty, under which she derived title to her separate estate, was in these words, viz.
    “ 5th. I will and give unto my daughters, Minerva and Susan, each subject to the performance and payment of one hundred dollars, as directed in the subsequent part of this, all the remaining part of the lands I bought of Harquett & Combs, and Jesse Barrow, and fifty acres I patented, adjoining the.same; also repeat the gift; and give unto them the following negroes, Isaac, Peter, Little Amos, Jenny, Penny, Eloah, Black Harriet and her child Lucy; and Nancy (woman), Sam, Readen, Ivey, Killis, Alfred, Louisa, and Rachel (children), as conveyed unto them by deed of gift made January, 1820; also fifty dollars in cash to each.”
    The marriage contract between Minerva Humphrey of the first part, Jacob J. Doty of the second part, and Daniel Ambrose of the- third part, was dated the 7th of June, 1828, and recited in substance, that whereas she was about to contract marriage with Doty, . and was entitled to an estate in land and negroes, bequeathed to her by her father; in consideration of the contemplated marriage, the agreement between the parties and one dollar paid to her, she sold to Ambrose all her separate estate, in trust “for the said Minerva Humphrey, her executors, administrators and assigns, until the said intended marriage shall be had and solemnized, and from and immediately after the solemnization thereof to the use of the said Daniel Ambrose, in trust, .that he shall permit the said Minerva, during her life and notwithstanding her coverture, to receive and take the rents, issues and profits of the lands and negroes before mentioned, and the same to use, apply and dispose of at her sole will and pleasure and discretion, in such manner and to such intent as she, Minerva, may think proper. To the intent that neither the said lands, nor the said slaves nor other personal property, nor the rents, issues, profits or interest thereof, nor any part thereof, shall be under the management, control or disposal of the said Jacob J. Doty, or be in any manner or way liable to his contracts, debts, or engagements; and from and immediately after the decease of the said J. J. Doty, should the said Minerva be then living, in trust, that the said Daniel Ambrose shall grant, assign, transfer, and set over the lands, and negro slaves and their increase, and any other property not limited and appointed under the powers herein provided and reserved to the said Minerva, her executors, administrators, and assigns forever. But in case the said Minerva shall not survive the said Jacob, then in trust, that the said Daniel Ambrose shall grant and convey, assign, transfer and set over, the said lands, slaves and their increase, and any other property not otherwise limited and appointed as aforesaid, to such person or persons and for such interest or estate as the said Minerva by her last will or by any writing in the nature of a last will, by her executed in the presence of one credible witness, shall give, limit, direct or appoint the same to be granted, conveyed, assigned, transferred and set over : which said last will or writing the said J. J. Doty hereby agrees and consents that the said Minerva, notwithstanding her coverture, shall have full power and authority to make and execute; and for want of such last will and testament, or writing in the nature of a last will and testament, then in trust that the said Daniel Ambrose shall grant and convey and assign, transfer and set over the said property to such person or persons as may be the next of kin to the said Minerva, to hold to them, their executors, administrators and assigns forever: Provided always, and it is hereby further agreed and declared by and between the said Jacob J. Doty and the said Minerva Humphrey and Daniel Ambrose, and it is the true intent and meaning of these presents, that the said Minerva, (notwithstanding her coverture) shall have full power, liberty and authority, and it shall and may be lawful to and for the said Minerva, by any deed or deeds, writing or writings to be by her subscribed, sealed and executed in the presence of two or more credible witnesses, to alter and revoke any of the trusts hereinbefore mentioned, limited and declared, of, touching and concerning the said land and slaves and increase as aforesaid; and by the same deeds or writings to create, limit or appoint any new or other trust or trusts of or concerning the same, or of so much or such part thereof, whereof the revocation shall be made, anything contained herein to the contrary thereof notwithstanding; and the said J. J. Doty, for himself, &c., doth covenant to and with the said Ambrose, &e., that he, the said J. J. Doty, will not destroy, make way with, dispose of, nor injure any of the property hereby settled, nor will suffer the same nor any part thereof to become chargeable with or to be affected by his debts or engagements of any sort; and that he will permit the said Minerva, during the marriage, freely'to exercise the power of appointment herein declared and reserved without control, and that no person claiming under him shall hinder, obstruct, or control any disposition, limitation, or appointment made by virtue thereof.” This contract was signed, sealed and acknowledged by all the parties in North Carolina, and there recorded ; and on the 13th day of October, 1840, recorded in Yalabusha county; and on the 2d day of February, 1842, in Holmes county, in this state. The parties resided in the latter county.
    By the contract between Minerva Doty and Jacob J. Doty, and Lott S. Humphrey and Daniel Ambrose, made on the 26th of January, 1834, in North Carolina, the former marriage contract was recited; the solemnization of the marriage, and the intention of Mr. and Mrs. Doty to remove from North Carolina, and the inconvenience of retaining Daniel Ambrose as her trustee; in view of which Lott S. Humphrey, by the consent and appointment of all parties, was constituted trustee in the room and stead of Ambrose, and all the powers and duties conferred on Ambrose by the marriage contract transferred to him; and precisely the same trusts, verbatim, declared that were declared by the marriage contract; the substitution of Lott S. Humphrey as trustee being the only change wrought by this subsequent agreement.
    The answer of Lott S. Humphrey denied that Minerva Doty designed to bind, or could bind, her separate estate, in the mode recited in the bill; he denied that she ever contemplated charging her separate estate, or in any way agreed to do so, or that complainant took the notes on the faith of it; but insists that he took them on the faith of Lemuel Doty’s guarantee.
    The deposition of Lemuel J. Doty was taken. He proved that in the year 1842 Mr. and Mrs. Doty occupied the plantation and hired the five negroes of complainant, in the year 1842, and bought the corn and fodder. That they, with the labor of their own hands, and of those hired from the complainant, made, their support that year. That all the crop of that year, except the corn crop, was applied to the payment of debts created by Jacob J. Doty, contracted in part for the benefit of his family, and in part for the support of the plantation; that Jacob J. Doty was without means; that the contracts were made by Jacob J. Doty as principal, in the absence of Mrs. Doty, who was then in Yalabusha county; and that Doty told Mitchell he would secure him in the contracts. The name of Mrs. Doty was used as principal for the purpose of making her separate property liable for said notes, which was also known by Mitchell. That these contracts were not necessary to the support, either of the family or separate estate of Mrs. Doty; but in the way of provisions the family had been benefited by them. That Jacob J. Doty requested the witness to talk to Mrs. Doty in relation to making the notes, informing her of the advantage of doing so, &c. He did so, and she stated to him that she was willing to assist her husband in any way she could. The witness also filed the following power of attorney from Mrs. Doty to himself, viz.:
    “ Know all men by these presents, that I, Minerva Doty, of the county of Holmes, in the state of Mississippi, have nominated, and by these presents do nominate, make and appoint Lemuel Doty, of the same county and state, my true and lawful attorney (specially) to act supervisor of all and singular my interests in said county and state; he, the said Lemuel Doty, having promised to become my indorser for the hire of five negroes, and the rent of one hundred and fifty acres of land from William S. Mitchell, and also for the purchase of stock, provisions, and all incidental expenses, in making and gathering a crop; in consideration of which, and for his indemnity, I do hereby give and grant unto the said Lemuel Doty, my special agent, full and unlimited control over the land and negroes hired from the said William S. Mitchell, together with my own negroes, and mules, and horses, purchased for the use of the plantation, with ample power to dispose of the crop, and any or all of the stock, and apply the proceeds to the payment of the debts incurred in cultivation and gathering of the said crop; and the residue, over and above the payment of the debts so incurred to be held in trust with the said Lemuel Doty, for my benefit and behoof. If, however, any of the debts alluded to should remain unpaid, after the proceeds of stock and crop have been properly applied, I bind myself, my heirs and assigns, well and truly to pay the same.”
    This power of attorney was signed and sealed by Mrs. Doty, on the 25th of October, 1841, and was approved by J. J. Doty, and acknowledged by both before a justice of the peace. The acknowledgment of Mrs. Doty was not taken separate and apart from her husband; nor expressed to have been made on a private examination, freely, without any fear, threats or compulsion of her husband, as her voluntary act and deed.
    William S. Mitchell having died, the suit was revived in the name of James Mitchell, his administrator; and the vice-chancellor directed a sufficient portion of Mrs. Doty’s separate property to be sold to pay the notes and interest; and she appealed.
    
      A. C. Baine, for appellants,
    contended,
    1. That a married woman could only bind her separate estate in the mode pointed out in the deed of settlement; and that Mrs. Doty had not so bound her separate estate. On this point he cited and commented on Hulme v. Tenant, I Bro. C. C. 21; Methodist Episcopal Church v. Jacques, 3 John. Ch. R. 1, 77; Jacques v. Methodist Episcopal Church, 17 John. R. 648; Opinion of Lord Thurlow, 3 Bro. 347 ; lb. 565 ; 9 Yesey, 188; Whistler v. Newman, 4 Yesey, 129; 3 Dessaus. 453-462; Morgan v. Elam, 4 Yerg. 375; Frost v. Doyle and Wife, 7 S. & M. 68; Berry v. Bland, lb. 77; Davis v.Foiy, lb. 64.
    2. That in no event could more than the rents and profits of the separate estate of Mrs. Doty be subjected to the payment of these notes.
    3. That the rents and profits could not be so charged as to defeat the object of the settlement. Markham v. Guennant, 4 Leigh, 279 ; Huss v. Pledge, 1 Leigh, 443; Lee and Wife v. Stuart, 2 Leigh, 76; Coutts v. Greenhow, 2 Munf. 363; Baird v. Bland, 3 Munf. 570; Wilcox v. Hubard, 4 Munf. 346; Tabb v. Archer, 3 Hen. & Munf. 399.
    4. Mr. Baine insisted that,, from the pleadings and proof, it did not legitimately appear that Mrs. Doty ever did intend to bind her separate estate, or had actually so bound it.
    
      William Thompson, on same side,
    Besides the points made by Mr. Baine, contended, 1. That Lemuel Doty was an incompetent witness, by reason of his being guarantor of the notes sued on.
    
      2. That it was as much the object of the law to save the wife from the undue influence of her husband, in relation to the disposition of her separate estate, as to protect her from the claims of his creditors.
    Brooke, for appellee,
    contended,
    1. That a married woman had power to bind her separate estate to the payment of her debts; and that it was the policy of the law that property should be answerable for the debts of its owner. Hulme v. Tenant, 1 Bro. Ch. Ca. 16; Clancy, Rights Mar. Worn. 331; Bullpin v. Clark, 17 Yes. 365; Clerk v. Miller, 2 Atk. 379; Pylns v. Smith, 1 Yes. Jr. 189; 1 Mad. Ch. 474; Chit, on Bills, 24; Clancy, Rights Mar. Worn. 331, 344, 345, 346 ; 2 Sto. Eq. 625 ; 1 Tuck. Com. Ill; 17 John. R. 548.
    2. That the prescribing a mode of conveying or binding her separate estate did not preclude her binding it in any other mode, and in the way established by the pleadings and proof in this case. 17 John. R. 585, 588; 2 Sto. Eq. 620, 621; Clancy, 293, 297, 302, 303; 2 Rop. on Prop. 236; l 'Serg. & Raw. 276; Sug. Pow. 120; 2 Rop. on Prop. 209; 1 Pet. C. O. R. 116; 2 Yes. Sr. 663; 3 Bro. R. 340; 13 Yes. 192 ; 1 Yes. Jr. 518 ; 11 Yes. Sr. 222.
    3. Lemuel Doty was a competent witness. Gres. Eq. Ev. 248, 249, et seq.
    
      W. R. Miles, on same side.
   Mr. Justice Thacher

delivered the opinion of the court.

Mitchell filed his bill in the district chancery court to subject certain slaves, the separate property of Mrs. Minerva Doty, to the payment of two bills single, executed by Mrs. Doty and her husband, jointly, and bearing date the 31st December, 1841, and the 11th day of January, 1842. The bill of complaint charges these bills single to have been executed for the payment of the rent of a tract of land, the hire of certain slaves, and the purchase-money of a quantity of com and fodder consumed upon the plantation of Doty and wife, which contracts were made and completed solely on the credit of the separate estate, and at the solicitation of Mrs. Doty. • The bill also charges the insolvency of the husband.

The separate property of the wife, acquired under the will of her father, was secured to her by a marriage settlement, which bears date the 7th day of June, 1828. This settlement preserved to Mrs. Doty the enjoyment of the rents, issues and profits of the separate estate, to be disposed of at her will and pleasure, so as not to be under the control and disposal of the husband, or in any way liable to his contracts, debts or engagements ; and it also embodied a provision, empowering her by deeds in writing, executed in the presence of two or more credible witnesses, to alter and revoke any of the trusts contained in the instrument of marriage settlement, and to create, limit, or appoint any new or other trusts concerning the same, or so much thereof as a revocation should be made.

The bills single, for the payment of which the slaves were sought to be subjected, were not executed in the presence of any witness, and they contain a guaranty of their payment, made by Lemuel Doty.

Mrs. Minerva Doty answered the bill of complaint, positively denying that the contracts charged in the bill were made at her solicitation, or, so far as she was concerned, upon the credit of her separate estate ; and alleging that she acted in the premises upon the representations of her husband, without ever intending to pledge, or in any manner bind her separate estate, and concluded by a demurrer to the complainant’s prayer for relief.

Lott S. Humphrey, the trustee in the marriage settlement, and a party defendant to the bill, filed his answer and demurrer.

The only proof taken was contained in the deposition of Lemuel Doty. He testified to the hiring of the slaves by Doty, the husband, and the purchase of the corn and fodder; that the contracts were made by the husband, in the absence of the wife, and that her name was used as principal in the bills single, for the purpose of rendering her separate property liable; that the contracts were not necessary for the support of Doty and wife, but were made as speculations; that at the request of the husband, he conferred with Mrs. Doty on the subject of her joining in the bills single, and that she expressed her willingness to assist her husband in any way she could. Lemuel Doty also proved a copy of a letter of attorney from Mrs. Doty to himself, in which, in consideration of his undertaking to become her indorser in contracts with Mitchell for the rent of land, hire of slaves, and the purchase of a stock of provisions, she constituted him her agent, with full powers, to control the land and slaves obtained from Mitchell, together with her own slaves, and to dispose of the crop and stock of the plantation, and apply the proceeds in payment of debts incurred in cultivating and gathering the crop; and in which she also engaged to pay any amount of debts that might remain unpaid after the proceeds of the stock and crop should have been exhausted. This letter of attorney was not executed in the presence of witnesses. No exceptions were taken in the chancery court to the competency of Lemuel Doty as a witness, on the score of his interest in the judgment arising from the circumstance of his having given his guaranty for the payment of the bills single.

It has already been intimated, in Berry v. Bland, 7 S. & M. 83, to be the opinion of this court, that it seems at this day to be settled, that a feme covert is not liable personally for any debt, and that her separate property in general is not liable in equity for the payment of her general debts or her general personal engagements ; but that the fact that a debt has been contracted during the coverture, either as a principal or as a surety for her husband, or jointly with him, is ordinarily to be held prima facie evidence to charge her separate estate, without any proof of a positive agreement or intention to do so. This opinion does not decide the question, whether a married woman acts in all respects unlimitedly as to her separate estate as a feme sole, for it will be seen from the case of James v. Fisk et al., 9 S. & M. 151, that the question was deemed still undetermined. It is only a decision as to the question of intention, and not of power.

In the case before us, however, a positive intention is charged in the bill to have existed on the part of the wife, and an issue of law and fact is made by the demurrer and answer upon that charge. Any such intention is denied by the wife as positively as it is charged. The evidence of Lemuel Doty, taken in behalf of the complainant in the bill, is relied upon to support the allegation of intention. He testifies that Doty, the husband, was in fact the principal in the contracts, and that they were made in the absence of Mrs. Doty. He adds that the husband was desirous of securing Mitchell, and that the idea of involving Mrs. Doty’s separate property, was first conceived between Mitchell and the husband. He also testifies, that when, at the request of the husband, he approached Mrs. Doty relative to her joining her husband in the notes, her reply was simply an expression of her willingness to assist her husband m any way she could. Thus far this evidence elucidates that the debt created was the effect of a speculation of the husband ; that Mrs. Doty’s share in it was procured at the instigation, and through the influence of her husband, and that the lien, if any had been obtained upon her separate estate, was procured by a combination between Mitchell and the husband. This state of things raises two serious points of inquiry ; first, whether any intention existed on the part of Mrs. Doty to bind her separate estate and secondly, if so, whether her consent was not procured fraudulently by the conspiracy of Mitchell and the husband.

The letter of attorney from Mrs. Doty to Lemuel Doty, which has been before described, invested Doty with no powers except over the crop and stock of the plantation. It concludes with a bare obligation on her part to pay the balance of any debt remaining unpaid. The consideration of the letter of attorney was the engagement of Lemuel Doty to become her indorser upon the contracts with Mitchell. The circumstance of her requiring the indorsement of Lemuel Doty, shows at least that, as between Mitchell and herself, there was no design to pledge or involve her separate estate, and her obligation to pay debts remaining unpaid, is given without any reference either to the separate estate itself or its annual proceeds.

Bnt at last this case presents those points, so often considered, whether a married woman is, as to her separate estate, a feme sole, or whether she has no powers but those conferred upon her by the instrument under which she claims. The English authorities, as has been frequently observed, are not well agreed upon these points, and no fixed rule can be deduced from them. In this country, the reported cases seem to hold that equity has so far changed the common law rule, that a married woman has no property or powers, as to relieve her from the rule so far as she stipulates for exception; but it confers upon her no powers beyond those given by the marriage settlement, or other conveyance in her behalf. From this doctrine, it follows that a married woman, as to her separate estate, is a feme sole only so far as the instrument conferring the separate estate constitutes her di feme sole, and that, in the disposition of such estate, the married woman is restricted to the particular mode or manner pointed out by the instrument conferring that estate. These points have been elaborately investigated and clearly determined in the case of Morgan v. Elam, 4 Yerger, 375, which case collects and weighs most of the authorities. We are inclined to accept the conclusions to be found in this case as most consonant to the true rules to be arrived at from all the cases, especially where they seem to have anticipated the policy which has since been engrafted into the legislature of this state.

With this view of the law bearing upon the case, it is perhaps unnecessary to enter into a train of reasoning to show, that, even if it were the intention of Mrs. Doty to bind her separate estate in the participation she took with her husband in the contracts with Mitchell, she has failed to proceed, or rather that Mitchell has failed to show, that she has proceeded to that end in the mode pointed out by her marriage settlement. From what has already been said in the course of this opinion upon other points, this will be sufficiently manifest.

It follows from all the foregoing, then, that the decree of the district chancery court must be reversed, and a decree entered in this court, dismissing the complainant’s bill of complaint.  