By the Court—
BROWN, C. J.,
delivering the opinion.
In this case the proof is clear that the husband had deserted his wife, and leaving her in Georgia, that he had gone to another State where he still resides. In such case the wife is competent to contract as a feme sole, and she is able to sue, and liable to be sued: See 2 Kent, side page, 150; 15 Mass., 30; 4 Met. Rep’ts, 478; 16 Ill., 278. And see Act of 1851, page 237.
But it is insisted that she was not competent to bind herself *to pay any debt of her husband. This may be true as the law now stands: See Code, Section 1773. But this contract was made prior to the adoption of the Code, and must be governed by the law as it then existed. The rule was firmly established in England at the time of our adopting statute, that the wife, as to her separate estate, if no restrictions were placed upon her power of alienation by the donor, was a feme sole, and that she could bind it by any contract she might make, as well to pay the debts of her husband, as for any other consideration; provided, always, the transaction was free from fraud or undue influence: See Dallas v. Heard et al., 32 Georgia, 604, where the authorities are so fully and ably reviewed by Judge Eyon, that it would be useless for me to do more than refer to what is there said. In that case, Mrs. Lane was possessed of certain property, which, by a decree in equity, in Troup Superior Court, was vested in Anderson, for the sole and separate use, benefit and behoof of her and her children, free from any debt, contract or liability of her husband; and of certain other property bequeathed to the said Anderson in trust, for the sole and separate use of Mrs. Lane and her children, during her life, and at her death, to be equally divided among the said children, the property not to be subject to the debts of her said husband. In 1856, while Mrs. Lane was a feme covert, she and her son executed a joint and several promissory note to Dallas for $276 25. At the date of the note. Mrs. Lane held the property aforesaid and her son was insolvent, and so remained at the time the bill was filed.
In 1858, Mrs. Lane and her children entered into an agreement that the trust property should all he sold except certain [147]*147articles, and that the proceeds, after paying all debts for which it was legally bound, be divided among the children, in consideration that each should pay to the mother, annually, one-sixth part of $350 00 during' her natural life. The property was so divided, and in a short time she died, leaving no property. Dallas then filed a bill against the children, insisting that his debt was a charge upon the separate estate of Mrs. Dane, and that as the children had' the ^'property, they ought each to pay their proportion of the debt. The Court below dismissed the bill for want of equity, holding that the separate estate was not so liable, and this Court reversed the judgment, and laid down the rule as follows: “As to the first question, that is, whether the property was bound for the payment of the debt, we hold that it was. Wherever property is secured to a feme covert to her sole and separate use, without qualification, limitations, or restrictions as .to its use and enjoyment, she is to be regarded in respect to such estate, in all respects, as a feme sole, and it is chargeable and bound for the payment of all debts contracted by her that may be secured by promissory note, or other undertaking in writing, to pay the same, whether said note is given by her alone, or jointly with others; she being the- sole and exclusive owner of the property, she holds it with all the incidents of property, the right of selling, giving, or charging it with the payment of debts.” In some of the cases cited, the contract of the wife was that of a security for her husband, and she was held liable where there was no fraud or undue influence.-
But it is insisted that this Court has laid down a different rule as to the ability of the wife to bind her separate estate for the payment of the debts of her husband; in Kempton v. Halowell & Company, 24 Georgia, 52; Hicks, trustee, v. Johnson, 24 Georgia, 194, and in Keaton v. Scott, 25 Georgia, 652. I think not. In all these cases the property was given and secured to the wife by deed or will, and it was expressly provided in the instrument, that it should in no case be subject to the debts of the husband, and the Court held that her power of alienation was restricted by the donor in the instrument by which she acquired it; and that she could not, on that account, bind it for the payment of her husband’s debt, that being the very thing to which the restriction related. This amounts, however, only to an exception to the general rule, and is not the rule itself. The rule is, that the feme covert is a feme sole as to her separate estate, with full power of alienation or disposition at her pleasure. The exception is, that if the donor has restricted the power of alienation or *disposition, she is bound by such restriction, and can not directly or indirectly alienate or bind it. in violation of the restriction placed upon it by .the donor. The decisions last referred to, do not, therefore, [149]*149change the general rule as it existed when they were pronounced and continued to exist, till the adoption of the Code.
But it is insisted that, under the Act of 1851, the separate' estate which the feme covert acquires by her own exertions, during the separation from her husband, is in like manner restricted by the Act itself, and that she can not, under that Act, bind any of her separate 'estate by any contract to pay any debt of her husband. And this, if I correctly understand the case, is the point of difference between the- different members of the Court. The Act is in these words: “That in all cases where a married woman has been deserted by her husband, and has, while so deserted, by her exertions, or those of her children, or otherwise, acquired property of any kind, the same shall be exempt from the payment of said husband’s debts, and be vested in' said married woman for her sole and separate use, not subject to the debts, contracts or control of said- husband.” It is insisted that the legislature puts the same restriction on the wife’s power to alienate or bind her separate estate, made during fhe desertion by the husband, that the will or deed does, in the cases which have been before this Court, and that by analogy to those decisions, she is prohibited from binding her estate so made, for the payment of any debt of the husband.
The distinction between the two cases, is, to my mind, very clear. In the one case, she does not make the property. It is given her by will or deed, and the donor, who did make it, and was the owner when the will or deed was made, had the undoubted right to make the gift, on such condition or with such qualification or restriction imposed as he. might think proper to prescribe. In the other case, the legislature was not the owner of the property, not the donor, and could properly place no condition or qualification on the use of that which it did not give. The Act of 1851 gives the wife, whose husband has deserted her, no property. It simply ^directs in such case, that what she acquires by her own exertions, or those of her children, or otherwise, shall be exempt from the payment of said husband’s debts, and shall be vested in her, for her sole and separate use, not subject to the debts, contracts or control of her said husband. There is some tautology in the Act.
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By the Court—
BROWN, C. J.,
delivering the opinion.
In this case the proof is clear that the husband had deserted his wife, and leaving her in Georgia, that he had gone to another State where he still resides. In such case the wife is competent to contract as a feme sole, and she is able to sue, and liable to be sued: See 2 Kent, side page, 150; 15 Mass., 30; 4 Met. Rep’ts, 478; 16 Ill., 278. And see Act of 1851, page 237.
But it is insisted that she was not competent to bind herself *to pay any debt of her husband. This may be true as the law now stands: See Code, Section 1773. But this contract was made prior to the adoption of the Code, and must be governed by the law as it then existed. The rule was firmly established in England at the time of our adopting statute, that the wife, as to her separate estate, if no restrictions were placed upon her power of alienation by the donor, was a feme sole, and that she could bind it by any contract she might make, as well to pay the debts of her husband, as for any other consideration; provided, always, the transaction was free from fraud or undue influence: See Dallas v. Heard et al., 32 Georgia, 604, where the authorities are so fully and ably reviewed by Judge Eyon, that it would be useless for me to do more than refer to what is there said. In that case, Mrs. Lane was possessed of certain property, which, by a decree in equity, in Troup Superior Court, was vested in Anderson, for the sole and separate use, benefit and behoof of her and her children, free from any debt, contract or liability of her husband; and of certain other property bequeathed to the said Anderson in trust, for the sole and separate use of Mrs. Lane and her children, during her life, and at her death, to be equally divided among the said children, the property not to be subject to the debts of her said husband. In 1856, while Mrs. Lane was a feme covert, she and her son executed a joint and several promissory note to Dallas for $276 25. At the date of the note. Mrs. Lane held the property aforesaid and her son was insolvent, and so remained at the time the bill was filed.
In 1858, Mrs. Lane and her children entered into an agreement that the trust property should all he sold except certain [147]*147articles, and that the proceeds, after paying all debts for which it was legally bound, be divided among the children, in consideration that each should pay to the mother, annually, one-sixth part of $350 00 during' her natural life. The property was so divided, and in a short time she died, leaving no property. Dallas then filed a bill against the children, insisting that his debt was a charge upon the separate estate of Mrs. Dane, and that as the children had' the ^'property, they ought each to pay their proportion of the debt. The Court below dismissed the bill for want of equity, holding that the separate estate was not so liable, and this Court reversed the judgment, and laid down the rule as follows: “As to the first question, that is, whether the property was bound for the payment of the debt, we hold that it was. Wherever property is secured to a feme covert to her sole and separate use, without qualification, limitations, or restrictions as .to its use and enjoyment, she is to be regarded in respect to such estate, in all respects, as a feme sole, and it is chargeable and bound for the payment of all debts contracted by her that may be secured by promissory note, or other undertaking in writing, to pay the same, whether said note is given by her alone, or jointly with others; she being the- sole and exclusive owner of the property, she holds it with all the incidents of property, the right of selling, giving, or charging it with the payment of debts.” In some of the cases cited, the contract of the wife was that of a security for her husband, and she was held liable where there was no fraud or undue influence.-
But it is insisted that this Court has laid down a different rule as to the ability of the wife to bind her separate estate for the payment of the debts of her husband; in Kempton v. Halowell & Company, 24 Georgia, 52; Hicks, trustee, v. Johnson, 24 Georgia, 194, and in Keaton v. Scott, 25 Georgia, 652. I think not. In all these cases the property was given and secured to the wife by deed or will, and it was expressly provided in the instrument, that it should in no case be subject to the debts of the husband, and the Court held that her power of alienation was restricted by the donor in the instrument by which she acquired it; and that she could not, on that account, bind it for the payment of her husband’s debt, that being the very thing to which the restriction related. This amounts, however, only to an exception to the general rule, and is not the rule itself. The rule is, that the feme covert is a feme sole as to her separate estate, with full power of alienation or disposition at her pleasure. The exception is, that if the donor has restricted the power of alienation or *disposition, she is bound by such restriction, and can not directly or indirectly alienate or bind it. in violation of the restriction placed upon it by .the donor. The decisions last referred to, do not, therefore, [149]*149change the general rule as it existed when they were pronounced and continued to exist, till the adoption of the Code.
But it is insisted that, under the Act of 1851, the separate' estate which the feme covert acquires by her own exertions, during the separation from her husband, is in like manner restricted by the Act itself, and that she can not, under that Act, bind any of her separate 'estate by any contract to pay any debt of her husband. And this, if I correctly understand the case, is the point of difference between the- different members of the Court. The Act is in these words: “That in all cases where a married woman has been deserted by her husband, and has, while so deserted, by her exertions, or those of her children, or otherwise, acquired property of any kind, the same shall be exempt from the payment of said husband’s debts, and be vested in' said married woman for her sole and separate use, not subject to the debts, contracts or control of said- husband.” It is insisted that the legislature puts the same restriction on the wife’s power to alienate or bind her separate estate, made during fhe desertion by the husband, that the will or deed does, in the cases which have been before this Court, and that by analogy to those decisions, she is prohibited from binding her estate so made, for the payment of any debt of the husband.
The distinction between the two cases, is, to my mind, very clear. In the one case, she does not make the property. It is given her by will or deed, and the donor, who did make it, and was the owner when the will or deed was made, had the undoubted right to make the gift, on such condition or with such qualification or restriction imposed as he. might think proper to prescribe. In the other case, the legislature was not the owner of the property, not the donor, and could properly place no condition or qualification on the use of that which it did not give. The Act of 1851 gives the wife, whose husband has deserted her, no property. It simply ^directs in such case, that what she acquires by her own exertions, or those of her children, or otherwise, shall be exempt from the payment of said husband’s debts, and shall be vested in her, for her sole and separate use, not subject to the debts, contracts or control of her said husband. There is some tautology in the Act. It first exempts the property from the payment of the husband’s debts, and vests it in the wife for her sole and separate use; and then, again, declares that it is not subject to the debts, contracts or control of the husband. This repetition of the same idea, adds neither strength to' the legal effect nor grammatical accuracy to the sentence. The meaning is, simply, that the property is vested in the wife, for her sole and separate use, free from the debts or control of the husband. Such was always the legal status of the wife’s separate estate, and she [150]*150was always held to be a feme sole as to such separate estate, with power to dispose of it at her pleasure, and to bind it, by her own contracts, for the debts of her husband, when there was no fraud or undue influence. .
The Act of 1851 makes the property acquired by the wife, during the separation, her separate property, free from the debts or control of her husband, as all other separate property was, before its passage. It puts no restrictions or conditions on the separate property of the wife, which did not exist by law, before its passage; nor was it intended to alter the law in that respect. It simply gives her power to hold as her -separate property, what she acquires during the separation, which, as the law then stood, went to her husband. In other words, it enlarges her separate estate, but it makes no change in the law as to her power over her separate estate. It declares it to be vested in her, for her sole and separate use, free from the husband’s debts or control. The separate estate of the wife was always vested in her, mo the same way, and was always exempt from the husband’s debts, unless it was otherwise provided in the instrument creating it. The very fact that it is a separate estate, necessarily includes the idea, that it is to her sole and separate use. And the fact that it is held by the wife to her sole and separate use, excludes *the idea, that it is subject to the husband’s debts, or to the debts of any one but the owner, unless she, by her contract, agrees so to bind it. And the fact that it is hers, and that she is, as to it, a feme sole, necessarily implies that she may, by her contract, convey or bind it, unless there is some positive legal restriction on her power of alienation. This Act, in my judgment, simply intends to protect the wife in the enjoyment of the property acquired by her, during the separation from her husband, against the creditors of her husband, and against his own right to take it from her, or to bind it by his contracts. But it does not deny to her the power to bind it, by any contract she may make. And if she, 'for a valuable consideration, contracts to pay his debt out of her property, there is nothing in the Act of 1851 which interfers with her power or right to do so.
In this case, the creditor of the husband was proceeding with an attachment against his property in her possession, of which it is, I think, fair to presume, she had the benefit. To stop the proceeding by attachment, she gave this note, and I am satisfied the.contract was founded upon a valuable consideration, that she had power to make it, and that she is bound by it. And I am further of the opinion, that any or all her separate estate is subject to the execution when obtained, except such as may have been given or granted to her, by deed or will, subject to such conditions, or restrictions imposed by ■ the donor, as protect it under the former rulings of this Court, to which I have referred in this opin[151]*151ion. I will remark in conclusion, that we have gone farther than it was necessary to go, to decide the case made by this record. When we entered into the discussion of the question of the liability of any particular species of separate estate, to the payment of this debt. But we have been induced to do so by the solicitation of the counsel, and by the range taken in the argument of the case. The only question necessary to be decided, is, were the plaintiffs entitled to a judgment upon this note? How they are to make their money after they have obtained the judgment is an after, consideration.
I hold that the plaintiffs are entitled upon the case made, *to a judgment against the defendant, for -the amount of the note, to be levied when obtained, upon such property, if any, as may be found subject.
Judgment reversed.
WARNER, J., concurred, but wrote no opinion.