Kimm v. Weippert.

injured thereby, as by his own pleadings he does not stand in an attitude entitling him to relief.

Judgment affirmed. The other judges concur.

KIMM, plaintiff in error, v. WEIPPERT.

(46 Mo. 532.)

Husband and wife — wife's separate estate.

A feme covert is absolutely a feme sole with respect to her separate estate, when she is not specially restrained by the instrument under which she acts, to some particular mode of disposition; and, although a particular mode of disposition is pointed out, it will not preclude her from adopting any other mode of disposition, unless there are words restraining her power of disposition to the very mode pointed out.

To

A married woman, having separate property, joined with her husband in a note for the purchase price of real estate purchased by the husband. secure the payment thereof a deed of trust of the same real estate was executed by both husband and wife. Default being made in the payment the land was sold, and suit brought to make good the deficiency out of the wife's separate estate. Held, that the note was not a charge on the wife's estate. Held, further, that extrinsic evidence was not admissible to prove the intention of the wife to charge her separate estate.

THE case is stated in the opinion.

Pipkin & Thomas, for plaintiff in error.

Ahlvers & Williams, for defendants in error.

WAGNER, J. It will be unnecessary to notice in detail the preliminary question raised in regard to the pleadings in this case. That the petition, tested by the rules of scientific pleading, is badly drawn, is unquestionable. But, as the court disregarded that part of it which prayed judgment on the notes, and tried the cause solely on the equities, we are inclined to treat it simply as a petition in equity; and we think that justice will be subserved and the interests of the parties promoted by examining the case upon its merits. The proceeding was in the nature of a bill in equity, to subject the separate estate of the defendant Eliza to the payment of certain notes due and owing to the plaintiff.

Kimm v. Weippert.

From the record it appears that the notes were given in consideration of the purchase of certain lots sold by plaintiff, in the town of Kimmswick, Jefferson county, Mo. Some of the purchase-money was paid, and the notes were executed for the remainder, signed by both the defendants, they being at the time husband and wife. To secure the payment of the notes a deed of trust was made and delivered, in which both of the defendants joined; and default being made in the payments, the property was sold at trustee's sale, and not bringing enough to satisfy the amount due, this suit was brought to obtain satisfaction of the residue.

It also appears that, at the time the property was purchased from Kimm, the defendant Eliza was possessed of a lot in Windsor Harbor, as her separate estate, but that the plaintiff had no notice of that fact, and this is the property which is now sought to be proceeded against.

The circuit court granted the relief prayed for, declared the debt a lien upon the estate, and ordered its sale for satisfaction. This decree was reversed in the district court, upon a mere question of pleading. The deed conveying the estate to the defendant Eliza, contains this clause, viz.: "To have and to hold, together with all the rights, immunities, privileges and appurtenances to the same belonging, unto the said Eliza Weippert, for her sole and separate use and benefit and behoof, separate and apart from her said husband, and for her heirs and assigns forever, with full power, by her deed duly executed and joined in by her said husband, to incumber, sell and convey the same conditionally or absolutely. The said John Weippert shall, in no event, have or obtain any interest or estate in said property by virtue of this deed, but the same shall belong absolutely to the said Eliza Weippert, as her own separate and individual property." It is now contended, that, as the deed conveying the separate estate to Mrs. Weippert provides that she may dispose of it by joining with her husband in a conveyance for that purpose, she is incapable of disposing of it in any other way; and it is further insisted that, in no event, is the separate estate chargeable for the debt. The deed vests in Mrs. Weippert the full, absolute and complete title, and gives her the entire ownership, and that will be generally held to carry with it the most ample power of disposition. Some of the earlier cases decided, that where a particular mode was pointed out in the deed to a married woman, by which she might convey her separate estate, she was restricted and could convey by

Kimm v. Weippert.

that mode only. Chancellor KENT was of the opinion that the power of disposition of the separate estate of the wife by her is not absolute, but only sub modo-to the extent of the power given her by the instrument, and if the instrument points out a particular manner of disposition, then no other can be adopted, although there is no express prohibition of any other mode; and there are other authorities of the same purport. Jacques v. M. E. Church, 3 Johns. Ch. 77; Lancaster v. Dolan, 1 Rawle, 231; Thomas v. Farwell, 2 Whart. 11; Morgan v. Elam, 4 Yerg. 375; Rogers v. Smith, 4 Penn. 93. But the later, better and prevailing opinion is, that a feme covert is absolutely a feme sole with respect to her separate estate, when she is not specially restrained, by the instrument under which she acts, to some particular mode of disposition; and, although a particular mode of disposition is pointed out, it will not preclude her from adopting any other mode of disposition, unless there are words restraining her power of disposition to the very mode pointed out. Jacques v. M. E. Church, on appeal, 17 Johns. 548; Vizonneau v. Pegram, 2 Leigh, 183; West v. West, 3 Rand. 373; Whitaker v. Blair, 3 J. J. Marsh, 239; Strong v. Skinner, 4 Barb. 546-553; Machir v. Burroughs, 14 Ohio St. 519; Leaycraft v. Hedden, 3 Green's Ch. 512. When the leading case of Jacques v. M. E. Church, supra, was in the court of errors, where all the law judges concurred in reversing the judgment of the chancellor, SPENCER, C. J., declared that the decisions fully established, "That a feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate ;" and "that the established rule in equity is, that when a feme covert, having separate property, enters into an agreement, and sufficiently indicates her intention to effect it by her separate estate, a court of equity will apply it to the satisfaction of such an engagement." And PLATT, J., considered the rule to be, "That a feme covert, having a separate estate, is to be regarded as a feme sole as to her right of contracting for and disposing of it. The jus disponendi is incident to her separate property, and follows, of course, by implication. She may give it to whom she pleases, or charge it with the debts of her husband, provided no undue influence be exerted over her; and her disposition of it will be sanctioned and enforced

Kimm v. Weippert.

by a court of equity without the assent of her trustee, unless that assent be expressly made necessary by the instrument creating the trust. And the specification of any particular mode of exercising her disposing power does not deprive her of any other mode of using that right, not expressly, or by necessary construction, negatived in the devise or deed of settlement." In the instrument we are now considering, there is no restriction or limitation. There are affirmative words showing that the wife may convey by joining with her husband, but there is nothing to indicate that it was intended that she should be restrained to that particular mode. As the absolute title was cast upon her, the jus disponendi accompanied it; and, in the absence of negative words limiting her power in regard to the manner and means to effect a charge or disposition, I am of the opinion that it was entirely competent for her to incumber or sell in any way she saw proper. Did her signing the notes in connection with her husband evince an intent to charge her separate estate? The ruling of this court has been that, where a married woman executed a promissory note jointly with her husband, although it did not appear on what account the note was executed, whether for the benefit of the wife or of the husband, or for their joint benefit, equity would subject real estate held to the separate use of the wife to the payment thereof, and would decree a sale of the same. Whitesides v. Cannon, 23 Mo. 457; Coates v. Robinson, 10 id. 757; Claflin v. Van Wagoner, 32 id. 252; Schafroth v. Ambs, 46 id. 114. In Whitesides v. Cannon, Judge LEONARD, in delivering the opinion of the court, although professing to follow strictly the case of Coates v. Robinson, entered into a very elaborate discussion of the question and a thorough review of the English cases. That the conclusion which he deduced is amply sustained by the English equity authorities is undeniable, and yet it must be admitted that it rests on no very satisfactory foundation, and that the best considered American cases have greatly changed and modified it. The whole doctrine of proceeding against the separate estates of married women is the creature of equity, and was resorted to to prevent injustice. The separate estate was a provision for the wife's separate use and benefit, independent of her husband, n which he had no interest, over which he had no right of control. She could not, at common law, hold the legal title to property, ither personal or real, for the reason that during her state of coverure she and her husband were considered one person, and her iden

Kimm v. Weippert.

tity, so far at least as the right to hold was involved, was lost or merged in him. There was, therefore, no way at law in which such separate estate of the wife could be reached to satisfy the demands upon it, however equitable and just, and although they may have been created by her for her individual benefit and upon the credit of her separate estate. 2 Sto. Eq. Jur., §§ 1366-1368.

To prevent the great injustice which might otherwise arise, and inasmuch as the wife's creditors had not the means at common law of compelling payment of her debts which she contracted to pay out of her separate estate, courts of equity undertook to give effect to them-not as personal liabilities, but by laying hold of the separate property as the only means by which they could be satisfied. 2 Spence's Eq. Jurisdic. 324. Grave doubts were for a while entertained whether the wife could dispose of the property without special authority conferred by the instrument conveying it to her, but it was finally decided that she could, on the ground that the right of disposal was a necessary incident to the right of property. It is undoubted that this universal jus disponendi was the exclusive and only foundation for the right in question. Lord THURLOW, in the case of Fettiplace v. Gorges, 3 Bro. C. C. 8, places the right upon this ground, and I am not aware that any other basis has ever been suggested for it. Assuming, then, this to be the foundation, would not .cason dictate that the wife, to avail herself of it, should make some disposition of the specific property itself, or by some act clearly indicate an intention to charge it and render it liable? Yet the master of the rolls, in Norton v. Turvill, 2 P. Wms. 144, and in Standford v. Marshall, 2 Atk. 69, held the separate estate of a married woman liable for the payment of her bond, although the bond in no way referred to her separate estate, and in the latter case was given for money lent to her husband. Lord Chancellor THURLOW followed these cases, and the reasoning in support of them seems to be this: that it being the rule in equity that a wife who had a separate estate might deal with such estate in the same manner as if she were sole, it followed that such estate was liable for her engagements in the same manner as it would be if she were a feme sole. The equitable rule, which, being founded in the right of the wife to dispose of her property, went no further than to allow her to make contracts specifically appropriating or charging her separate estate, was thus extended so as to enable her to contract generally, without in any manner referring to such estate.

VOL. II.-69