JAN.TERIii, 1856. DOBBIN V. HUBBARD. riage contract, with the view that the property owned by them respectively, might not be encumbered or charged, in consequence of the marriage, with any of the consequences incident thereto, either by the common law, or the 1891 *DOBBIN & WIFE laws of Arkansas ; by which contract, it was agreed between them, after ex-HUBBARD. pressing the intention aforesaid, that notwithstanding the marriage, Pillow At common law, the legal existence of the wife is merged in that of the husband by the marriage, shquld hold and retain all his real and and as a general rule, her contracts are void, and personal property, free from any claim cannot be enforced against her in a court of law, of alimony or dower therein, on the But it is a rnle in equity that a femme courerte,in re-part of said Levisa, with power to sell gard to her separate property, is considered a femme sole, and dispose of the same without her and may, by her contracts, bind her separate estate. consent, &c. That the said Levisa Where a married woman has created a charge should have free and absolute right, upon her separate estate, as by executing a bond, power and authority, to grant, bargain bill, note, drc., the creditor bas, as a general rule, sell, alien, enfeoff and deliver, any and no remedy, in a court of law, against her, but he must proceed in equity : and even in equity, she all kinds of property which she then is not, personally responsible. owned, or might thereafter _acquire by In order to charge the separate property of the gift, grant, purchase, devise or descent, wife; it is not necessary that she should execute whether the same be lands, goods, chat-an instrument expressly raerring to it. It is sat-ficieot that she profess to act as a _femme sole : a:.d tels, credits, bonds, bills, notes, or ne-shows an intention to charge her separate estate. groes, without the consent or assent of A bond executed by a femme coarerle, where the *the said Pillow, and without I:*191 authority to do so is reversed by marriage contract, being void at law during the his joining her in the sale, conveyance lifetime of the husband, is equally void upon his death, and enforca-or delivery thereof, or in the execution ble only in equity against the separate esla'e of of the title or deed therefor ; it being the wife unrn the faith of which the bond was exe-the express understanding, between cuted : and so upon the second marriage of the wife. the parties to the eoutract, that none of the property, which either of them Appeal from the Circuit Court of Phil-them owned, or might thereafter ac-lips County, in Equity. quire, should be taken or held subject H ON. CHARLES W. ADAMS, to the payment of the debts of the Circuit Judge. other, whether contracted prior or subsequent to their marriage. That said Fowler & Stillwell, for the appellants. Levisa should have the full right and 1901 *ENGLISH, C. J. This was a liberty, after the marriage, to contract bill filed by John M. Hubbard, in the debts, and execute in her. own name, Ph illips ci re u i t court, against Wilson evidences or notes for the payment D. Dobbin and wife, Levisa, to enforce thereof, without the consent or assent the payment of a debt out of the sepa-of the said Pillow : and by last will to rate property of the latter. The case devise to such persons as she might made by the bill is as follows : choose, anv or all of her estate, real, That on the 12th of December,1850, personal or mixed, including slaves, the defendant, Levisa, of Phillips &c., without advice, consent or ap-county, Arkansas, and Napoleon B. proval of Pillow : and, in a word, to do Pillow, of Memphis, Tennessee, being all and every act or acts, in reference about to intermarry, executed a mar-to her said property, while married,
DOBBIN V. HUBBARD. VOL. 17 *that she might or could lawfully do, if dissolution of their marriage, other-Isole and unmarried. That during the wise than by death, the property of marriage, Pillow was to have and ex-each shall be returned to the one who • ercise the sole dominion over all prop-may have brought the same with mar-erty which might be owned by said riage. It iS further agreed, that the Levisa, so far as to receive the rents, annual proceeds of the mutual prop-profits, and annual products of the erty of the parties should be applied, same, to the end, that it might be ap-first, during their cohabitation, to their plied to the mutual support and enjoy-mutual support, and the residuk ; , (lur-ment of the parties, &c., with this re-ing that time, to such objects and striction that the debts which the said uses as the said Wilsn D. might Levisa then owed, were first to be pilid desire or wish. This contract was out of the said income and profits. also proven and recorded in Phil-That this marriage contract was duly lips county. proven and recorded in Phillips The bill further alleges, that at the county ; and, after its execution, the time of the marriage of the said Levisa said Levisa and the said Pillow inter-and Pillow, and at the time of t he ex-married. ecution of the marriage contract be-That on the 24th day of May,1851, and tween them, and since that time, and during her coverture with Pillow, the now, the said Levisa was and is pos-said Levisa executed and delivered to sessed of a large amount of property, as the complainant, Hubbard, her sepa-of her own, and to her sole and separate ob:igation for 8701.53, bearing that rate use : and among which property date, due and payable on the day it were, and are certain slaves, five in was executed. That it was her inten-number, which are described. tion, in the execution of said writing That the said obligation has not been obligatory, to bind her separate prop-paid by the said Levisa, or any one for erty thereby, and that she did so bind her. the same. The marriage contracts and the obli-That afterwards, on the—day of gation are exhibited. —, 1852, Pillow departed this life, and The bill prays that the separate prop-on the 24th day of : January, 1853, the erty of the said Levisa, including that 1921 said Levisa "intermarried with above described, might be decreed to the defendant, Wilson D. Dobbin. have been bound by the execution of That prior to their marriage, she and said writing obligatory. That defend-Dobbin also entered into a marriage ants be required to discover all of the contract, by which it was agreed be-separate property owned by the said tween them as follows : Levisa at the time said obligation was That notwithstanding their contem-executed, or at any time since. That plated marriage, the joint property of complainant have judgment for his the two should be used and controlled debt and interest; and that he have by them mutually during their covert-execution for the same against ure ; and that, in prospect of death, the - the separate property of the P193 said Levisa reserved to herself the said Levisa, above described, or that a right, power and privilege of disposing commissioner might be appointed to of any or all of her property, which sell so much of said separate property she may then own, by will or devise, as might be necessary tor the payment of the debt and inter(st. at such time to such person or persons as she may and place as the court might deem choose, without the advice or consent right and proper; and for general re-of the said Wilson D.: and in case of lief.
JAN. TERM, 1856. DOBBIN V. HUBBARD. The defendant filed separate answers *tory, executed by her to the P194 to the bill. So much of the answer of complainant, had not been paid by Mrs. Dobbin as is deem ed material to her, or by anyone for her. be stated, is as follows: The answer of Dobbin is substan-She admits the execution of the mar- tially the same as that of his wife. riage contract bet ween her and Pillow: The case was heard upon bill, an-their intermarriage, and that while swers, replications and exhibits, and she was his wife, she executed and de- the court decreed that the writing ob-livered to complainant the obligation ligatory, executed by the defendant, exhibited with the bill, as alleged by Levisa, to complainant, was a charge the complainant. That Pillow died upon her separate property; that he some time prior to the 24th January, have judgment for the principal and 1853, but at what precise time, she was interest due thereon," and satisfaction uninformed or advised. That she in- thereof, out of her separate property termarried with Wilson D. Dobbin on described in the bill, and that a com-the day and year last named, and was missioner be appointed to execute the still living with him as his wife. That decree, &c. The defendants appealed at the time of her marriage with Pil- to Ihis court. low, and at the time when they entered 1. It is a well settled doctrine of the into said marriage contract, and since common law, that by the marriage, then, and until her said marriage with the legal existence of the wife is Dobbin, she was possessed of a large merged in that of her husband, and amount of property, as of her own, and that, as a general rule, contracts made to her sole and separate use, and among by her are void, and cannot be en-which were the slaves described in the forced against her in a court of law. bill. She submits, that by her mar- Reeve's Domestic Relations, 98, 170; riage with Dobbin, the slaves described Chitty on Bills, 21; 2 Kent Com. 150; 2 in the bill, and all her other personal Bright's Husband and Wife, 249. The property passed to, and vested in him, special exceptions to this general rule subject only to the restrictions aud res- are to be found in the books referred ervations in her favor, contained in to, but having no application to the the marriage contract between thrisr. case before us, need not be mentioned. She states that it is not true, as alleged 2. But it is an equally well settled in the bill, that it was her intention, rule in equity, that a femme couverte, at the time she executed the said in regard to her separate property, is writing obligatory to complainant, to considered a femme sole, and may, by bind her separate property. That all her contracts, bind such separate es-she intended to do was, simply, to tate. 2 Kent Com. 164; 2 Bright's H.& comply with the request made to her TV. 254; Adam's Equity 45; Reeve's Do-by the complainant, and that was to mestic Relations 164; Fire Ins. Co. of A. execute and deliver said instrument; v. Bay, 4 Barb. Sup. C. Rep. 407; W.ylly and she was willling that 'it might et al. v. Collins & Co., 9 Geo. Rep. 223. have just such effect as the law of the In some of the States, the English doc-land would give to it, and she submits trine, that a femme couverte, unless re-to the court whether, under the state strained by the instrument creating nf the case, the said instrument had the separate estate, has the same power the effect charged in the bill. She ad- of disposition over it, if personalty, as mits the marriage contract between a femme sole, is followed. In others, herself and Dobbin, as alleged in the however, the femme is held to have bill; and that the writing obliga- only such power as is expressly given
BOBBIN V. HUBBARD. VOL. 17 her. See Note to Adam's Equity, 2). erty, will, in equity, he enforced. But 46, where the cases pro and con are in all cases, the court must proceed cited. But in this case, we are against the property, as, although she under the necessity of taking may. become entitled to the property sides in this controversy, be-for her separate use, she is 110 more ca-cause the power to dispose of or pable of contracting than before. But 1951 G charge by contracts, her sepa-when she is a defendant in a court of. rate estate, reserved by the defendant, chancery, the suit being to establish .a Levisa, in her marriage contract with claim upon her separate estste, she is Pillow, was ample and general. Nor so far considered as a single woman as. need tbe effect of our "married wo-to make it necessary to serve her per-man's law" (Digest, chap. 104,) upon sonally with process. Since the the power of afemme couverte to dispose wife is liable only to the extent of, or charge her separate estate, be of her separate property, &c., considered, because there is no feature the court merely operates upon it, of the case brought within its provis-and not against her personally. ions. G Her husband is a mere formal [*190 3. Where a married woman bas cre-party, &c. See, also, 2 Kent Com. 164. ated a charge upon her separate estate, It is manifest from these authorities, as by executing a bond, bill, or note, that the woman is not personally li-&c., the creditor has, as a general rule, able, even in equity, as upon a valid no remedy in a court of law against contract, but that the debt is regarded her, for, as above remarked, her con-as a charge upon her separate estate, tracts are void at law; but he must pro-which the creditor is to enforce against ceed by bill in equity. it, by bill, in the nature of a proceed-Mr. Reeve says, p. 164, the separate ing in rem. The remedy of the com-property of the wife is liable for her plainant, therefore, against the sepa-contracts made during the coverture, rate property of the defendant, Levisa, and, by process in equity, such prop-in the lifetime of her husband, Pillow, erty may be reached. But she is not was plain enough, if the debt was really liable to a judgment, on which execu-a charge upon such property. tion issues; for, in this way, her person 4. In order that the separate prop-might- be subjected to execution, and erty may be thus bound, it is not. nec-thus, the husband's right to her person essary that she should execute an in-would be violated. strument expressly referring to it, or Mr. Adams says, p. 45, in the absence purporting to exercise a power over it. of any fetter on anticipation, the wife It is sufficient that she professes to act has the same power over her separate as a femme sole. For the court of chan-property as if she was unmarried. Her cery, in giving her the capacity to hold disability to bind her general property sepalate property, gives also the ca-is left untouched; but she may pledge pacity, incident to property in general, or bind her separate property, and the of incurring debts to be paid out of it; court of chancery may proceed in rem and enforces payment of such debts against it, thought not in personam when contracted, not as personal lia-agai nst herself. bilities, but by laying hold of the sep-Mr. Bright says, vol. 2, page 254, 255, arate property, as the only means by the wife being considered as a femme which they can be satisfied. Adams' sole in respect of her separate prop-Equity, 46. erty, her contracts, for valuable con-It is sufficient that there is an inten-sideration, with reference to such prop-tion to charge her separate estate, and
JAN. TERM, 1856. DOBBIN V. HUBBA RD. the contract of a debt by her during band's property not to be liable for her coverture, as by executing a bond, bill contracts, tke. And this Marriage con-or note, Stc., is a presumption of that tract was put upon the public records intention: and it has been held that of the county where she and the com-her separate estate was responsible plainant resided. If, when she execu-without showing any promise.' 2 Kent ted the bond to complainant, she did Corn. (8th Ed.) p. 164; Reeves' Domestic not intend to charge her separate prop-Relations, 169; Vanderheyden v. Mal-erty thereby, it was a mere mockery to lory, 1 Comstock, Rep. 443; 2 Story's Eq. make and deliver to him the instru-Juris., sec. 1400; Coats et al. v. Robin-ment, and he was guilty of folly and son et al., 10 Mo. Rep. 760; Bradford nonsense in taking it, because, as we and Mfe v. Greenway et al., 17 Ala. have seen, unless it operated to charge Rep. 279; Collins v. Lovenburg & Co., her separate estate, it could have no 19 Ala. Rep. 683; Jarman & Co. v. valid operation whatever, and was a Wilkerson, 7 B. Mon. 293; Coleman v. null and void act, as she was not per-Wooley's Exr., 10 B. Mon. 320; Leay-sonally bound thereby. craft v. Hadden, 3 Green's Ch. Rep. 5. The bond being void at law when 512; Bright's Husband and 11ife, p. it was executed, by reason of the co-252, 253, 517, 518, et. seq; Viser v. Bert-verture of the defendant, Levisa, it re-rand, 14 Ark. 267; Collins v. Randolph, "mained equally void after the death of 19 Ala. Rep. 616; Boarman Groves, Pillow, and could not have been en-23 Miss. (1 Cushman), 280; 6 U. S. An. forced by an action at law, as a personal D. 342. obligation against her, unless she made 1971 "No doubt the presumption a new promise after site became disco-that a married woman intended to vert. Vvrice v. Wells & Co., 6 Ala. Rep. 737; charge her separate estate, arising from Same case, 8 Ala. Rep. 399; Lee v. Muggeridge the execution of a bond,bill or noteok.c., et al., 5 Taunton 36, I Eng. Com. L. Rep. 32 ; by her, would be stronger or weaker ac-Chitty on Bills 22; Viser v. Bertrand, 14 cording to the character of surrounding Ark. Rep. 267. circumstances ; and, without intend-There being no right of action at ing to declare a rule as applicable to all law against Mrs. Pillow, no personal cases, we think it sufficiently manifest, liability rest ing upon her for the debt, from the facts in this case, that the de-Dobbin did not assutne, by his mar-fendant, Levisa, by executing her bond riage with her, any legal or personal to complainant, intended thereby to responsi*bility to discharge the r4198 charge her separate estate, and the debt; and hence the complainan t had n(i mode of denial in her answer is not retnedy at law against him, or against sufficiently positive and diroct to over-him and her jointly, as he would have turn the presumption, and put the had upon a debt made by her after the complainant to additional proof. By death of Pillow, and before she mar-her marriage contract with Pillow, she ried Dobbin. The remedy of com-reserved her entire estate, with lull plainant remained in equity to charge power to dispose of the same in any the separate property of Mrs. Dobbin, mode she might think proper, with upon the faith of which the bond was the right to make contracts, execute executed. And by the marriage, Dob-notes, and other evidences of debt, and bin took her property, if he took it at generally to act as a femme sole in ref-all under their marriage contract, erence to her separate estate ; her hus-charged with an equitable iucum-1. See Viser v. Bertrand, 14-274, note 1; Trieber brauce in favor of the complainant v. Stover, 30-727, secs. 4621 et seq. Mans. Dig. The court below rendered no per-
VoL. 17 sonal decree against defendants, not even for costs, but the decree is strictly in rem, to be satisfied out of the separate property of the wife charged, and a commissioner appointed to execute the decree by a sale of the slaves. The decree is affirmed ; but as the time fixed by the court for the sale of the property, the 28th day of May, 1855, has passed, the court below, on the remanding of the cause, must, at once, make suitable directions for its execution. Hon. T. B. Hauly, Judge, not sitting in this case. Cited : —29-417 ; 30-729 ; 32-450.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.