Simrall J:
Samuel B. Thomas, late sheriff of Hinds county, brought in the circuit court of Hinds county, a sum of money raised by sale, under executions, of the property of S. E. Simmons, judgment debtor, and submitted to the court its appropriation.
The money was realized under executions, as follows: In favor of Caroline Simmons against S. E. Simmons, on judgment dated 17th May, 1866, for $16,651 30, in favor of Andrew Thomas; against same defendant on judgment recov[37]*37ered 23d November, 1866, for $323 45, in favor of J. B. Thomas; on judgment against the same defendant, recovered the 22d day of November, A. D. 1866, for $840 88.
Caroline Simmons and Andrew Thomas, each claimed the money. The court below ordered its application to the judgment in favor of Andrew Thomas. The evidence adduced at the hearing, was embodied in a bill of exception, and the case is brought here by the plaintiff in error, who assigns for error, that the court erred in not directing the money to be paid on her judgment.
It was proved that Caroline Simmons, at the date of instituting her suit, and the recovery of judgment, was the wife of S. E. Simmons, the debtor; that she owned separate property, real and personal, derived from her father, D. O. Williams.
The record of the two judgments, were also in evidence.
The point which has given us most-trouble, is whether the judgment in favor of the wife against the husband, being rendered by default in a court of law, is or not void.
The common law regarded the husband and wife as one person, therefore the husband could not give an estate to the wife, nor the wife to the husband. Co. Litt., 187 b; 102 a. So a husband cannot contract with his wife. 2 Wilson, 254. This is the doctrine wherever the strict common law prevails. In equity, where the principle is otherwise — two centuries ago — it was held in England that a gift by husband to wife, without a trustee, was good in equity.
It has long since been conceded in the equity courts, that post-nuptial settlements and contracts may be upheld without a trustee. Story Eq., § 1380; 4 Barb., 404; 9 Paige, Ch. R., 363; 2 Russ & Mylne, 197.
The reason why access was refused to a court of law, to the wife, was for the want of legal parties, and also, on reasons of public policy. Whilst this was So, the wife was, as to her private property, a feme sole, and could charge it with debts. And the rule at law became so far relaxed, that there might be transactions and dealings between each other, which [38]*38would be recognized and upheld in equity. A husband gave his note to his wife, for money borrowed from her, and which she had, as part of á former husband’s estate. This created a liability enforceable in equity. 10 Ohio Rep., 371. Nor does it matter from what source the money comes to the wife, if it was her separate property. 3 P. Wms., 377; 3 Paige, 452; 3 Dessaussure, 168.
Courts of equity look to the substance, and not to the forms of these transactions; and regard husband and wife as distinct persons, when they have, as respects each other, distinct property interests. 19 Vermont, 410; 24 ib., 375.
The books are full of illustrations of the doctrine that there, may be direct dealings between husband and wife.
A deed from the husband to the wife is valid, as between the parties, and good as to strangers, if resting on a valuable consideration and honest motive. 28 Miss. Rep., 717; 24 Miss. Rep., 181; 25 Ib. Rep., 160.
The husband for value and Iona fide endorsed and delivered a negotiable note to the wife, she took the paper with the rights of any other endorsee. 38 Maine, 68.
If the note be payable to the wife, her endorsement (the husband assenting), passed the title. 10 Cush., 291.
Authorities are abundant, that post-nuptial settlements are good where a valuable consideration existed — such as a Iona fide indebtment to the wife, or where her property has been appropriated by the husband. 161 Vesey, 146; 6 John Ch. Rep., 57.
A voluntary settlement made by a husband not indebted • at the time, was good as against subsequent creditors. 8 Wheat., 220.
There is no doubt that the relation of debtor and creditor may subsist substantially between the husband and wife. It would not be brought in question by the learned counsel for the defendants in error, that Mrs. Simmons might well have brought her bill in chancery against her husband, and had proper relief, taking all the matters set up in her declaration. True, she ought to sue by her next friend, but [39]*39she would be the only party in interest, nor would it be doubted, that if the facts warranted it, a pecuniary decree in personam, might go against the husband to be enforced like this judgment, by ordinary fieri facias. The relief rests on the equity, that the husband by the transactions had with his wife, touching her separate property, has become her debtor. The law is inadequate on account of its system of pleading and practice to give this relief. Technically the wife is sub potestate viri, and has no separate adversary status in its courts against the husband. But the “ right ” of the wifes’ subsists, and the subject at last is reduced to this —that she has applied to the wrong forum to assert her right. But can this objection be made against Mrs. Simmons in this case ? The defendants in error, are not parties or privies to the judgment of Mrs. Simmons. It does not bind or effect them, except that it is a debt of record, with all the incidents and advantages of a judgment, and the record is conclusive evidence against them, that it is a “judgment.” In that respect it proves itself, and is unimpeachable. If it had been placed on record by plea, that Mrs. Simmons was under coverture, her suit would have abated. Lord Bacon says : “ A man shall never assign for error, that which he might have pleaded in abatement, for it shall be accounted his folly to neglect the time for taking that exception.” At. common law, personal disabilities become subjects of judicial cognizance only as connected with some right or duty, which by reason of the disability, such as coverture, infancy, etc., the party is incapable to assert. The mode of availing of it varies, as the party under disability is plaintiff or defendant.
The disability always implies a right, but an inability to assert it. If the defendant neglects by plea in abatement, to object the coverture of the plaintiff, but demurs, or pleads in bar, he must be taken to have waived it, and can not avail of it on writ of error. Lyman, admr v. Albe, admr., 7 Vermont, 509. If the abateable matter occurred after plea to the merits, it may be set up in a plea puis ciarrien continuance, if interposed at the earliest moment according to the course [40]*40and practice of the court. But if the disability be to the writ, or the person of the plaintiff, and it existed at the time the defendant appeared and pleaded to the merits, he will thereby waive all benefit of such disability, and is estopped from procuring it, or in any form taking advantage of it. Wilson v. Hamilton, 4 Serg. & Rawl., 238. But these defendants in error, may say that not being parties to the suit, they had no opportunity to set up the coverture of Mrs. Simmons. Neither can they be heard in a collateral suit like this, to put forward exceptions to the proceedings in her suit, which were not made by the defendant.
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Simrall J:
Samuel B. Thomas, late sheriff of Hinds county, brought in the circuit court of Hinds county, a sum of money raised by sale, under executions, of the property of S. E. Simmons, judgment debtor, and submitted to the court its appropriation.
The money was realized under executions, as follows: In favor of Caroline Simmons against S. E. Simmons, on judgment dated 17th May, 1866, for $16,651 30, in favor of Andrew Thomas; against same defendant on judgment recov[37]*37ered 23d November, 1866, for $323 45, in favor of J. B. Thomas; on judgment against the same defendant, recovered the 22d day of November, A. D. 1866, for $840 88.
Caroline Simmons and Andrew Thomas, each claimed the money. The court below ordered its application to the judgment in favor of Andrew Thomas. The evidence adduced at the hearing, was embodied in a bill of exception, and the case is brought here by the plaintiff in error, who assigns for error, that the court erred in not directing the money to be paid on her judgment.
It was proved that Caroline Simmons, at the date of instituting her suit, and the recovery of judgment, was the wife of S. E. Simmons, the debtor; that she owned separate property, real and personal, derived from her father, D. O. Williams.
The record of the two judgments, were also in evidence.
The point which has given us most-trouble, is whether the judgment in favor of the wife against the husband, being rendered by default in a court of law, is or not void.
The common law regarded the husband and wife as one person, therefore the husband could not give an estate to the wife, nor the wife to the husband. Co. Litt., 187 b; 102 a. So a husband cannot contract with his wife. 2 Wilson, 254. This is the doctrine wherever the strict common law prevails. In equity, where the principle is otherwise — two centuries ago — it was held in England that a gift by husband to wife, without a trustee, was good in equity.
It has long since been conceded in the equity courts, that post-nuptial settlements and contracts may be upheld without a trustee. Story Eq., § 1380; 4 Barb., 404; 9 Paige, Ch. R., 363; 2 Russ & Mylne, 197.
The reason why access was refused to a court of law, to the wife, was for the want of legal parties, and also, on reasons of public policy. Whilst this was So, the wife was, as to her private property, a feme sole, and could charge it with debts. And the rule at law became so far relaxed, that there might be transactions and dealings between each other, which [38]*38would be recognized and upheld in equity. A husband gave his note to his wife, for money borrowed from her, and which she had, as part of á former husband’s estate. This created a liability enforceable in equity. 10 Ohio Rep., 371. Nor does it matter from what source the money comes to the wife, if it was her separate property. 3 P. Wms., 377; 3 Paige, 452; 3 Dessaussure, 168.
Courts of equity look to the substance, and not to the forms of these transactions; and regard husband and wife as distinct persons, when they have, as respects each other, distinct property interests. 19 Vermont, 410; 24 ib., 375.
The books are full of illustrations of the doctrine that there, may be direct dealings between husband and wife.
A deed from the husband to the wife is valid, as between the parties, and good as to strangers, if resting on a valuable consideration and honest motive. 28 Miss. Rep., 717; 24 Miss. Rep., 181; 25 Ib. Rep., 160.
The husband for value and Iona fide endorsed and delivered a negotiable note to the wife, she took the paper with the rights of any other endorsee. 38 Maine, 68.
If the note be payable to the wife, her endorsement (the husband assenting), passed the title. 10 Cush., 291.
Authorities are abundant, that post-nuptial settlements are good where a valuable consideration existed — such as a Iona fide indebtment to the wife, or where her property has been appropriated by the husband. 161 Vesey, 146; 6 John Ch. Rep., 57.
A voluntary settlement made by a husband not indebted • at the time, was good as against subsequent creditors. 8 Wheat., 220.
There is no doubt that the relation of debtor and creditor may subsist substantially between the husband and wife. It would not be brought in question by the learned counsel for the defendants in error, that Mrs. Simmons might well have brought her bill in chancery against her husband, and had proper relief, taking all the matters set up in her declaration. True, she ought to sue by her next friend, but [39]*39she would be the only party in interest, nor would it be doubted, that if the facts warranted it, a pecuniary decree in personam, might go against the husband to be enforced like this judgment, by ordinary fieri facias. The relief rests on the equity, that the husband by the transactions had with his wife, touching her separate property, has become her debtor. The law is inadequate on account of its system of pleading and practice to give this relief. Technically the wife is sub potestate viri, and has no separate adversary status in its courts against the husband. But the “ right ” of the wifes’ subsists, and the subject at last is reduced to this —that she has applied to the wrong forum to assert her right. But can this objection be made against Mrs. Simmons in this case ? The defendants in error, are not parties or privies to the judgment of Mrs. Simmons. It does not bind or effect them, except that it is a debt of record, with all the incidents and advantages of a judgment, and the record is conclusive evidence against them, that it is a “judgment.” In that respect it proves itself, and is unimpeachable. If it had been placed on record by plea, that Mrs. Simmons was under coverture, her suit would have abated. Lord Bacon says : “ A man shall never assign for error, that which he might have pleaded in abatement, for it shall be accounted his folly to neglect the time for taking that exception.” At. common law, personal disabilities become subjects of judicial cognizance only as connected with some right or duty, which by reason of the disability, such as coverture, infancy, etc., the party is incapable to assert. The mode of availing of it varies, as the party under disability is plaintiff or defendant.
The disability always implies a right, but an inability to assert it. If the defendant neglects by plea in abatement, to object the coverture of the plaintiff, but demurs, or pleads in bar, he must be taken to have waived it, and can not avail of it on writ of error. Lyman, admr v. Albe, admr., 7 Vermont, 509. If the abateable matter occurred after plea to the merits, it may be set up in a plea puis ciarrien continuance, if interposed at the earliest moment according to the course [40]*40and practice of the court. But if the disability be to the writ, or the person of the plaintiff, and it existed at the time the defendant appeared and pleaded to the merits, he will thereby waive all benefit of such disability, and is estopped from procuring it, or in any form taking advantage of it. Wilson v. Hamilton, 4 Serg. & Rawl., 238. But these defendants in error, may say that not being parties to the suit, they had no opportunity to set up the coverture of Mrs. Simmons. Neither can they be heard in a collateral suit like this, to put forward exceptions to the proceedings in her suit, which were not made by the defendant.
In late years there has been a great enlargement of the property rights and interests of married women, in this and many of the other states.
The scope of this legislation has been to secure to her the corpus of the property which she brought into the marriage, or subsequently acquired, and also to give to her the income and revenues of her separate estate, free from the right, use of, or disposition on the part of the .husband.
In Pennsylvania, where this sort of legislation exists, she has been permitted to sue in her own name, in respect of her separate estate. Goodyear v. Rambaugh, 13 Penn., 481.
The Illinois statute of 1861, embraces the same provisions, in effect, as respects the separate property of married women, as arts. 23 and 24 of the Code, p. 335 and 336. Perhaps the Illinois statute in discribing the “ interest ” of the wife, may be a little broader than ours.
In the case of Emerson v. Clayton, 32 Illinois R., 496, the wife in her own name brought replevin for chattels, her separate property, her coverture was pleaded in abatement. The plea was held bad, on the ground that the entire interest in the property was in her. There ivas no necessity to “join her husband in an action to recover it, or for trespasses upon it.”
Under a somewhat similar statute in Pennsylvania, in the case of Goodyear v. Rambaugh, 13 Penn., 481, the right of wife to sue without joining the husband, was also recognized.
[41]*41Samuel Shade confessed a judgment in favor of his wife Elizabeth Shade, for $600. Under judgment, the land oí Samuel Shade was sold and proceeds brought into court for distribution. After paying prior liens, the wife would be entitled to $74 in her judgment, if valid. The law of that state, securing the separate property interests of the wife, and the judgment not being assailed for fraud, the residue of the money was ordered to be paid over on it.
Subsequent to this, in the supreme court of the same state, occurred the case of Moore’s appeal, 47 Penn. Rep., 308.
Jesse Moore, the husband, confessed judgment in favor of his wife. The points arose on motion to distribute money.
The court say: “ Here is a judgment given by husband to secure the wife’s separate estate. "We are asked on a mere question of distribution, to pronounce it void, upon the legal fiction that they are one person in law.”
After reviewing the departures which had been made from this “ legal unity,” by the courts of equity, in giving full effect to the separate property interests of the wife, which it fostered and protected, the court adds: “ Here we have a judgment, regular on its face ; Moore, the defendant, was sni juris., capable of giving it, while the marriage is a fact, de hors the record. ” Then what is there in the legal discretion of the court to enquire into the validity of the judgment? If marriage is suggested — there being no fraud alleged — the answer is, the law protects her estate, and equity sustains the instrument which represents it; and why should the court lend its aid to overturn the judgment ?
The summary of the judgment is : The estate, both in corpus and income is preserved to the wife. The claim which, in this case, was merged into judgment, is due and owing, so far as the record shows. Equitably, it ought to be paid. We do not feel at liberty^ — in a collateral controversy of this sort, to hold the judgment void. To do so, would be reactionary to the spirit and'scope of modern legislation in the interest of married women.
The case last cited, if accepted as authority, fully sustains [42]*42this view. The defendant in error, Thomas, could have shown, if the facts would have maintained it on the hearing of the motion, that the judgment in favor of Mrs. Simmons “ was had, made, or contrived of malice, fraud, covin, collusion, or guile, to the intent to delay, hinder, or defraud creditors of their just rights,” etc., etc.; but there was no issue of this sort made.
If the judgment had been successfully assailed on these grounds, then the judgment would have been utterly void.
Let the judgment of the circuit court be reversed, and judgment rendered in this court, that the money be applied to the judgment in favor of Mrs. Simmons.