
    WASHINGTON B. WILLIAMS vs. JOSEPHINE R. REID.
    Married Women; Contracts of; Separate Estate; Wife Living Apart from Husband.
    1. A married woman is not liable in an action at law upon her promissory note given for furniture purchased by her for the purpose of furnishing a house not owned as her statutory separate estate.
    2. Property acquired by a married woman directly or indirectly by gift or conveyance from her husband is not her statutory separate property.
    3. A separation of two years and one month is not a sufficient length of time to bring the case within the rule that where husband and wife have been living apart for a long time the wife may sue and be sued as a feme sole.
    
    At Law.
    No. 28,372.
    Decided May 5, 1890.
    Justices Hagnek, Cox, and James sitting. ,
    Motion by defendant for a new trial on exceptions taken in an action against a married woman on a promissory note executed by.her.
    
      Judgment reversed.
    
    The facts are stated in the opinion.
    Messrs. J. J. Wilmarth and C. Storks for plaintiff;
    The capacity of a married woman, under the Married Woman’s Act of this District, to make,contracts is statutory; therefore her contracts under that act are legal, not equitable, and cognizable in courts of law. See 727, 728, 729, and 730, Revised Statutes, D. C. Williams vs. Hugunin, 69 Ill., 216; Cookson vs. Toole, 59 Ill., 515; Conway vs. Smith, 13 Wis., 140.
    It is immaterial to this or any similar issue, whence the title to the property is derived by a married woman, to enable her to contract in relation to it, provided that title is “absolute” in her, and, further, provided it has not been derived by her in injury to others or in fraud of her husband’s creditors. Elder vs. Jones, 85 Ill., 584; George vs. Spencer, 2 Md. Ch. Rep., 353; Jewell vs. Porter, 11 Poster, N. H., 34; Rhea vs. Rhenner, 1 Peters, 105.
    It was the chief, if not the only purpose of the framers of the statute, to enlarge the common law powers of a married woman to such extent, and in such manner that she may acquire absolute title to property, and control over it, independent of-her husband, and that without the intervention of a trustee, and next to make her responsible by lien upon such property, through a law court, for contracts made by her in reference to the property. Rich vs. Hyatt, Law Rep., Vol. 7, 104; Cookson vs. Toole, 59 Ill., 515; 2 Kent, 163, 164, note b; Offutt vs. Dangler, 5 Mack., 313; Yale vs. Dederer, 22 N. Y., 450.
    She can acquire property by gift or conveyance from her husband, and the ownership is as absolute in her, and separate from her husband, as if acquired from any other source, provided it has not been acquired in fraud of her husband’s creditors — that it is the quality of the title in her — “ absolute” in the meaning of the act — which creates the legal capacity of a married woman, under the statute, to contract in relation to it, and not whence the title is derived. That the title thus acquired is absolute and complete, and the contract made is binding and cognizable in courts of law. Elder vs. Jones, 85 Ill., 384; Manhattan Co. vs. Osgood, 15 Johns, 167; Hulme vs. Tenant, 1 Brown’s Ch., 18, 19 ; Rhea vs. Rhenner, 1 Peters, 105 ; Yale vs. Dederer, 22 N. Y., 450; Thomson vs. Dougherty, 12 Sergeant & Rawle’s, Pa., 448; George vs. Spencer, 2 Md. Ch., 373.
    The title to the property described in the bill of exceptions, and involved in this suit — 1017 Connecticut Avenue, has in it no elements of a gift, near or remote, légal, equitable, or popular, positive or by implication, but was conveyed to defendant, in fee, by decree of court, as a legal settlement and division of estate, after exhaustive inquiry by the chancellor.
    
      - The language of the decree conveying to defendant is plain and as follows: “Free and discharged from any right, title, claim, or demand of said Samuel C. Reid of any kind whatsoever therein or thereto.”
    The title conveyed to the husband is equally plain and conclusive, and is as follows : “To be free and discharged of and from any righ,t, title, claim or demand of the said Josephine R. Reid by way of dower or otherwise howsoever therein or thereto, or any other claim now existing against said Samuel C. Reid whatsoever on the part of said Josephine R. Reid as wife of said Samuel C. Reid.” Murry vs. Bonlee, 3 Mylne & King, 209 ; Williams vs. Hugunin, 69 Ill., 216 ; Thomson vs. Dougherty, 12 Sergeant & Rawle’s, Pa., 448 ; Sykes vs. Chadwick, 18 Wall., 14-151.
    To constitute a gift, inter -vivos, supported by law, certain conditions are indispensable. These conditions are set forth in the following decisions.
    To make a valid gift, there must be a present intention to give, and a complete renunciation of right by the giver over the thing given, without power of revocation, and a full delivery of possession as a gift. Nims vs. Ross, 42 Ga., 121.
    To make a valid gift, inter tows, there must be a delivery with the intention of making a gift. Doty vs. Wilson, 47 Sickels, N. Y. Ct. Apps., 580.
    Delivery is an essential element to be proved in -establishing a title by gift. Hanson vs. Millett, 55 Me., 184.
    A gift to be binding and irrevocable must be completed by delivery to the donee by the giver, or by his authority without conditions, or if conditions were imposed that they were complied with by the donee. Berry vs. Berry, 31 Iowa, 415.
    Binding contracts made by a married woman are, first, such as grow out of, or are necessarily connected with the use and beneficial enjoyment of her separate estate, as furniture to be used on the premises, cattle to stock a farm, labor to improve jtb, &c. Harman vs. Garland, Law Rep.; Vol. 9, 150 ; Clarkson vs. Toole, 59 Ill., 515 ; Soloman vs, Garland, Law Rep., Vol. 11, 19; Owen vs. Cawley, 36 N Y., 600.
    . Second. Contracts made upon the faith and credit of such separate estate, for the wife’s personal benefit, or that of her dependent family, or for the benefit and protection of the estate, &c. Yale vs. Dederer, 22 N. Y., 450 ; Hammond vs. Corbett, 5 N. H., 311; Williams vs. Hugunin, 69 Ill., 216.
    Third. Contracts made with the intention or by, specific agreement to bind the separate estate. White vs. McNett, 33 N. Y., 376 ; Shannon vs. Carmey, 44 N. H., 592.
    At the trial in the court below, defendant introduced no oral testimony in defense, and plaintiff maintains that she has none that would not release every bona fide debtor within the jurisdiction ; that this case is governed by the Married Woman’s Act, and the decisions of the courts of this District under the same, and that the claim set up in the amended declaration is binding upon the property described in the -bill of exceptions, as the separate estate of defendant. Jones vs. Clifton, 101 U. S., 225.
    Mr. W. Willoughby for defendant.
   Mr. Justice LIagneb.

delivered the opinion of the Court:

Washington B. Williams, in January, 1888, brought suit against Josephine R. Reid upon several promissory notes executed by her alone, dated August 4, 1887. Among the various defenses it was contended that as she "was the wife of Samuel D. Reid when the notes were'given, she was not liable upon them in an action at law. To this the reply of the plaintiff was that at the time of their- execution she was seized of separate property in her own right;' and also that she was permanently living apart from .her husband; and hence that judgment could be recovered against her under the provisions of Section 727 et seq. of our Revised Statutes.

The facts appearing in the case are that in 1882 the husband received from the Government of the United States a considerable sum of money which he invested in several lots on Connecticut avenue, and caused them all to be conveyed to his wife. They remained in her name until 1885, when there was a litigation in the Equity Court between the husband and wife respecting the property, and a 'decree was passed, in virtue of which the husband and wife joined in a conveyance of the entire property to one Thompson, as trustee, who, by the same decree, was required to convey one-half of the property to the husband in his own right, and to convey the other half to a trustee for the benefit of the wife. Thompson, in July of that year, conveyed to Hassan, as trustee for Mrs. Reid, one-half of the property. The language of the deed is that Hassan, as trustee for Mrs. Reid, “shall be, and is hereby, vested with the title in fee simple of the aforesaid real estate for the said Josephine R. Reid and her heirs, with full power, at her request in -writing, to sell and convey the same in fee, or for auy lesser estate, or to encumber the same by mortgage, or deed of trust, and subject to such disposition thereof as she may make by her last will and testament; the said real estate to be free and discharged from any right, title, claim or demand of the said Samuel D. Reid, of any kind whatsoever therein or thereto.” The record title of the property remains in this position now. At the trial evidence was offered and admitted against the objection of the defendant, to the effect that when Mrs. Reid made a purchase from Williams of a quantity of furniture, for which these notes were given, she stated she bought it for the purpose of furnishing a house which belonged to her (and which it was admitted was part of the property, so conveyed to Hassan, as trustee); that she had abundance of property, and was answerable for the debt and would pay it herself. It was insisted that this presented a case within the principle laid down by this court in one of the Garland cases. There a married woman who owned a house in her own right purchased furniture, as she represented at the time; for the purpose of rendering the house rentable as a boarding house, and the court held she was liable at law for the purchase; likening it to a Vermont case where a married woman purchased stock and farming implements to cultivate a farm belonging to her separate estate.

We do not think the facts justify the application of the principle of that case to the present.

In the first place it is clear the conveyance of this property to the trustee invested him with active duties, and not only with a dry legal title. The use, therefore, not being executed in the wife at the time, the legal title remained in the trustee, and she is entitled only to an- equity in the property; an interest not liable to be seized on execution if this plaintiff should recover a judgment at law in this jurisdiction against her.

In the second place this property undoubtedly was acquired from the husband during coverture, within the meaning of our statute. Section 727, R. S. D. C., declares:

“In this District thé rights of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage, in any other way than by gift or conveyance from her husband, shall be absolute aá if she were unmarried, and shall not be subject to the disposal of her husband nor be liable for his debts.”

This property, we hold, was in the category described in the exception. A discrimination is attempted to be made because she now holds the property under the decree of chancery and the trust deed made in pursuance of that decree, and not by direct conveyance from her husband. But the whole property originally belonged to the husband, and was vested in her in consequence of his gift, and the formal fact that it was afterwards conveyed by them both to Thompson for the purpose of securing to her the part she •now holds, and that through the intervention of the court a different form of conveyance lodged the part now in controversy in Hassan, her trustee, does not change the principle. The inquiry must be, whence did it come originally ? She first acquired it by conveyance from her husband during coverture; and -while it remained in that shape it -was directly within the words of the exception. To allow a formal change like that effected by the decree to destroy the effect of the original gift of the property to' her by her husband during the coverture, would be to frustrate entirely the admirable purposes of this provision and encourage knaves to attempt to withdraw their property from liability to their creditors by lodging it in the hand's of trustees for the benefit of their waves. What could not be done by deed from the husband directly to the wife, should not be capable of accomplishment in this indirect way, which -would be an inadmissible device for evading the law.

This particular point does not appear to have been presented in our reports; but it is noticed in Kaiser at al vs. Stickney & Crosswell, commissioners of the Freedman’s Having and Trust Company, decided by the Supreme Court of the United States at the October term, 1880. The case is not contained in the Supreme Court Reports, but is to be found in the Co-operative Reports, Book 26, page 170.

Kaiser, in 1869, conveyed the land there in dispute to Johnson, who re-conveyed it immediately to Caroline Kaiser, the wife of the first grantor. Afterwards the husband joined her in a mortgage of the land; and the sufficiency of the conveyance by Johnson to vest the title in the wife as her sole and separate estate was a question before the court, which Chief Justice Waite disposed of in these words: “It is very clear the property was not, under Sec. 727, R. S. D. C., the sole and separate property of Mrs. Kaiser.”

We think on these grounds the wife is not liable at law for this debt.

It was Insisted also on behalf of the plaintiff that the facts of this case brought it within another principle, that in certain cases where the husband and Avife have been living apart for a long time, suit may be maintained against the Avife herself as if she were a feme sole. In 2 Kent. Com,., 155, the whole subject is discussed; and also in 1 Peters, 108, in the case of Rhey vs. Rhenner. The doctrine A?as there held to apply where a woman married a foreigner aaTio continued to reside out of the realm; or where the husband had abjured the realm; or had left it and persistently remained abroad for a long time, abandoning his family. In the case in 1 Peters, the husband had been continuously absent seven years. In the case of a divorce a mensa et thoro, there was a similar ruling. But no such circumstances exist here. The separation of the parties Avas too short to bring the case within the most liberal construction the rule would admit. The deed to Iiassan, the trustee, was executed July 31, 1885, and that was the date at which these persons parted company and agreed to live apart. The note was given in August, 1887, which was only two years and one month afterwards, and the suit as brought the following January, which was less than three years after the separation. None of the cases maintain the right to sue the wife alone after so short an interval of absence, while the parties continue to reside in the same jurisdiction.

The judgment is reversed and a new trial granted.  