Colvin v. Currier

22 Barb. 371, 1856 N.Y. App. Div. LEXIS 64

• Court: New York Supreme Court
• Decided: September 1, 1856
• Status: Published

Opinion

E. Darwin Smith, J.

If the premises on which the plaintiff’s husband in his lifetime erected a dwelling house, at the request of the defendant Mrs. Currier and her husband, were the separate estate of Mrs. Currier, in the sense and language of a court of equity, there can be no doubt that such property would be liable for the payment of the plaintiff’s debt, contracted as it was on the faith of the undertaking and agreement of Mrs. Currier, and for the benefit and improvement of her estate.

Since the decision of Jaques v. The Methodist Episcopal Church, in the court for the correction of errors, (17 John. 548,) the doctrine 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 by appointment, or bind it by debts contracted for the benefit of the estate or for her own benefit, upon the credit of such separate estate, may in this state well be regarded as settled law. This doctrine has been since repeatedly applied -in the courts of this state, and twice since has been reasserted by the court for the correction of errors; first, in affirming the decision of the chancellor, in the case of The North American Coal Co. v. Dyett, (7 Paige, 9,) and again, in the case of Gardner v. Gardner, (22 Wend. 526.) In the latter case Judge Cowen states the rule very clearly. He says, “ If the wife holds an estate separate from and independant of her husband, as she may do in equity, chancery considers her in respect to her power over this estate a feme sole ; and although she is incapable of charging herself at law, and equally incapable in equity of charging herself personally with debts, yet I think the better opinion is, that separate debts contracted by her expressly on her own account shall, in all cases, be considered an appointment or appropriation for the benefit of the creditor, as to so much of her separate estate as is sufficient to pay the debt.”

-.This right of disposition has been regarded as absolute, unless the wife was specially restrained by the instrument under which she acquired the estate, and except also that it was for some time doubted whether she could convey her separate estate by deed without the concurrence of her husband. This doubt is however finally solved by the decision of the court of appeals in The Albany Fire Ins. Co. v. Bay, (4 Comst. 9.) This doctrine is not questioned by the learned judge who decided this case at special term. The demurrer was sustained, not upon the ground that the plaintiff’s debt would not be a charge upon the separate estate of Mrs. Ourrier, in equity, but on the ground that her estate was strictly a legal and not an equitable one. The learned judge says, “A merely legal estate of the wife, although under the present statutes of this state she may hold it to her sole and separate use, and convey and devise it as if she was unmarried, and the same is not subject to her husband’s disposal, or liable for his debts, is not a separate estate, in the sense of those words, in the law relating to married women.” It seems to be supposed by my brother Strong that the acts of 1848 and 1849, in relation to married women, have created a separate estate absolute and unqualified in the wife as a distinct legal estate, to which the doctrine of courts of equity, in regard to the separate estate of married women, as above stated, does not apply. To this view of those statutes, and their force or construction, I cannot agree. The separate estate created by those statutes, I insist, is not without the jurisdiction of this court, any more than if it were the separate estate known to the courts of equity before the passage of those acts. The reason of the law applies to such estate, as much as if it were created by a marriage settlement, or a devise or conveyance to trustees for the benefit of a married woman. A separate estate belonging to a married woman should be considered the separate estate recognized by a court of equity, however acquired. A married woman is under the particular jurisdiction of this court, considered as a court of equity. She cannot be sued at law. This court disregards the disability of coverture, and treats her as a feme sole for her benefit; and it allows her to sue and be sued as such, in respect to her separate property. At the common law she could neither sue nor be sued, and scarcely had a single ' recognized right, separate and apart from her husband, in respect to property. Her legal existence was deemed merged in his. She and her husband constituted one person.

The husband at common law was entitled to the personal property, including choses in action of his wife at marriage, and had a freehold interest in her legal estate. (Co. Lift. 351, a and b. Clancefs Rights of Married Women, 161.) These . strict rules of the common law have been gradually relaxing, through the intervention of courts of equity, in modern times. Through marriage settlements, devises and conveyances in trust, upheld and enforced in courts of equity, the right of married women to have separate estates, independent of their husbands, has long been recognized.

The acts of 1848 and 1849, were statutes passed in furtherance of the policy of relaxing the strict rules of the common law in respect to married women. Those acts repeal the common law rules giving the husband a right to the personal property . of the wife, and a freehold interest in her estate of inheritance, and subjecting the same to the payment of his debts. Those statutes are but the adoption of the equitable rules of this court considered as a court of equity, and applying those rules to all property of the wife, whether legal or equitable. These acts were designed to take away the marital rights of the husband in respect to such property of the wife. The evil complained of was the too great subjection of the property of the wife, at common law, to the control of the husband and his creditors. The remedy was to apply the rule of this court, in respect to the separate property of married women, to all property belonging to the wife. It is true the property is thus converted into a legal estate, but it is none the less a separate estate, independent of the husband. In respect to her separate estate in equity, the wife, we have seen, could be sued, and her estate charged with her debts. ^The acts of 1848 and 1849, although they allow the married woman “ to hold to her sole and separate use, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she was unmarried, and provide that the same shall not be subject to the disposal of her husband, nor liable for his debts” do not allow her to make contracts, except in respect to such property, and they do not allow her to be sued in courts of law. In respect to all other of her contracts they are void still, as at common law, and the contracts which she may make are only cognizable, and capable of being enforced, in a court of equity. So far as the courts of law are concerned, the disability of coverture still remains, in respect to all the contracts or property of married women.

It is, I think, a mistake to consider the jurisdiction which courts of equity in England and in this country have long ex-exercised over the separate property of married women, as depending entirely upon the doctrine of trusts. But if uses and trusts were connected with the origin of this jurisdiction, it has been upheld for more than a century without respect to such origin. (Story’s Eq. Jur. § 1380.) The civil law treats husband and wife as distinct persons, capable in a limited sense of contracting with one another and of suing each other, and of having separate estates and interests. (2 Story’s Eq. § 1368. 1 Fonb. Eq. B. 1, ch. 2, § 6, and n. A.) A wife may in equity, in cases respecting her separate estate, be sued without her husband, although he is ordinarily joined, for the sake of conformity to the rule of law, as a nominal party, whenever he is within the jurisdiction of the court and can be made a party. (2 Story’s Eq. § 1368.) This whole doctrine in regard to the separate rights of the wife is borrowed from the civil law. It was long since adopted in courts of equity. It is the chief basis upon which jurisdiction over married women rests, in this court; and this court has no right to relinquish such jurisdiction. The right to sue married women in respect to their separate property, as it exists in this court, is a very important right, and must be exercised until the legislature takes it away. This court never relinquishes jurisdiction once acquired, and this is a cardinal rule in chancery. (1 Story, § 64. 3 Bro. Ch. R. 218. 6 Yesey. 812. 7 id. 19, 21. 9 id. 468.) The acts of 1848 and 1849 contain no evidence of the intention of the legislature to strip this court of its jurisdiction over married women or their estates, or to exempt the separate estate created under or by those acts from the equitable principles of- this court as applied to the separate estates of married women; and to hold that such is their effect, is to place the separate legal estate of married women virtually out of the pale of the law ; to create a species of property entirely new in the legal nomenclature, placing in the hands of married women a sword to be used as an instrument of fraud and dishonesty, instead of giving to them a shield against imposition and hardship in the exercise of the well known rights of the husband at common law.

But whatever may have been the object of the legislature, it is the duty of the courts of equity to continue to apply its principles of remedial justice to all cases, as they arise, within the just scope and reason of those principles, until the legislature expressly forbids such exercise of its powers.

The view which I have taken, I think, is sustained by the decision of the learned judge who wrote the opinion of the court in the case of The Fireman's Ins. Co. v. Bay, (4 Barb. 414.) Judge Parker there says, a “separate estate exists in the wife where the husband has no interest in her property and no control over-it, and where it is not liable to the payment of his debts.” And “if it be in fact a separate estate, I do not see that it is at all material to inquire how the estate was created.” The estate of Mrs. Currier is clearly a separate estate in this sense; it is free from the control of her husband. My brother Strong does not deny this, but says it is a legal estate. That makes it, I think, none the less a separate estate. It matters not, as says Judge Parker, “how it was-created." It is just as separate, as completely so, if a legal, as if it were an equitable estate. This decision was affirmed in 4 Comst. 9, and Judge Jewett, in describing or defining the separate estate, uses pretty much the precise language of Judge Parker. But Judge Pratt, in a dissenting opinion in that case, (page 27,) says that “Separate estates in married women which courts of equity recognized their right to dispose of as femes sole, are strictly equitable estates.” This was doubtless so before the passage of the acts of 1848 and 1849. But that case arose before the passage of those acts, and was decided irrespective of them; and the case does not conflict in any respect with the view which I take of the effect of those acts. Judge Pratt does not mean to assert, I presume, that equity may not reach the separate estates of married women, when such estate shall ■actually exist, however created. Separate estates of married women, before the acts of 1848 and 1849, were necessarily equitable estates; for the wife could have no distinct separate legal estate, free from the control of the husband, and from the reach of his creditors. (See also Willard’s Eq. Jur. 643.) Since the law, however, recognizes, as it now clearly does, under the acts of 1848 and 1849, a strictly legal separate estate in married women;' without subjecting it or them to the ordinary jurisdiction of the courts of law, it seems to me that in this court, as a court of equity, it is a sufficient basis for jurisdiction over such property for the enforcement of debts for the benefit or on the credit thereof, that a feme covert is free from the disability of coverture, and may sue and be sued as afame sole, in respect to her separate property. But aside from this basis of jurisdiction, the very existence of a court of equity furnishes another, upon original principles. The power of courts of equity in England, in early times, was principally applied to remedy defects at common law, and for the same reason which constitutes now the principal reason for their existence and interference, to wit, “ that a wrong is done fob which there is no plain and adequate and complete remedy in the courts of law.”

If the property of the defendant, Mrs. Currier, cannot be reached to enforce payment of the plaintiff’s debt, the plaintiff is clearly remediless, and a gross wrong and immorality is committed. Her separate estate has been increased largely in value, as the bill states, much beyond its original worth, in consequence of the work done and erection thereon made by the plaintiff’s husband. If the legal estate were in the wife, as before the acts of 1848 and 1849, the husband would be liable for the debt, and his freehold interest in it might have been sold upon execution. But now the plaintiff has no remedy at law, and a gross fraud is, or will be, perpetrated, unless this court can enforce payment of this debt from the estate which its consideration has benefited. It is part of the duty of this court to prevent acknowledged wrongs and to protect acknowledged rights when courts of law are inadequate to give relief, and to apply the comprehensive and expansive power of'equitable principles to meet new exigencies as they arise, that the great principle of law and justice may Joe practically vindicated, in permitting no wrong to be without a remedy, and no injury to go unredressed

The point that two causes of action have been improperly joined, is not well taken.

The complaint is designed as a bill in equity to reach the property of the wife, and the husband was a ■ proper party. Some of the allegations in it may be unnecessary, and too much may be asked in the prayer for relief; but enough is stated to constitute a good cause of action for equitable relief, and the rest may be disregarded as surplusage.

The order of the special term should be reversed, and the demurrers overruled, with leave to the defendants to answer on payment of costs.

Welles, J.

The argument of the appeal in this case was heard at the general term, held in March last. . At that time iny impressions were strongly in favor of the appellant. The case was held over for consideration until the following June term ; when, finding my brethren unable to agree, and in view of the importance of the question involved, it was again held over at my request, to give opportunity on my part for further examination. Since then I have given the subject as thorough an investigation as I am capable of doing; which has confirmed my first impressions, and led to an entire conviction of the soundness of the views contained in the preceding opinion of my brother Smith.

I agree with the justice who decided the case at special term, that a legal title to property in a feme covert, held by her under the acts of 1848 and 1849, is not such a separate estate as the courts of equity had recognized and acted upon. Such separate estate was a provision for the wife’s separate use and benefit, independent of her husband, in which he had no interest, over which he had no right of control, which was usually, though not necessarily or invariably, held by her trustee, and which she disposed of by way of appointment. She could not, at common law, hold the legal title to property, either personal or real, for the reason that during her state of coverture she and her husband were considered one person, and her identity, so far at least as the right to hold property was involved, was lost or merged in him. Hence, there was no way at law in which such separate estate of the wife could be reached to satisfy 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 Story's Eq. Jar. §§ 1366,1367,1368.) To prevent the great injustice which might otherwise arise, and inasmuch as the wife’s creditors had not the means at law of compelling payment of her debts which she had 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 Hist, of Eq. Jar. of Ch. 324.)

The only difference between the separate estate of a married woman, as recognized and acted upon by courts of equity for centuries, and their title to property acquired or held under the acts of 1848 and 1849, is, that the former is an equitable and the latter a legal es.tate or title. They are equally inaccessible at law to creditors, and there is quite as much necessity and reason for applying the doctrine in question to the latter as to the former. Unless it can be done, there is no way of reaching the property of a married woman, held by her under the statutes referred to. And I can perceive no objection to doing it. It is simply extending an ancient and well established principle of equitable jurisprudence to a case clearly within the spirit of the principle.

[Monroe General Term, September 1, 1856.

It cannot be doubted, it seems to me, that if the rights, legal capacities and privileges of married women had been the same at common law as the statutes in question have made them, the rule in equity respecting the liability of their separate estates would have originally been made applicable to them both, in common. A case or state of -things is brought into existence by the legislature clearly within the reason and necessity of the principle, and which, I entertain no doubt, should be made subject to its power and action. The question is so well and fully examined by Mr. Justice Smith, that I deem any particular discussion of it in this place unnecessary. I am, therefore, in favor of reversing the judgment of the special term.

T. E. Strong, J., dissented.

Judgment reversed.

T. R. Strong, Welles and Smith, Justices.]