Ankeney v. Hannon/Opinion of the Court
This is a suit in equity to charge the separate estate of a married woman with the payment of certain notes of which her husband is one of the makers, such estate having been acquired subsequently to their execution. It arises out of the following facts: On the 25th of March, 1880, Joseph E. Hannon, Clara M. Hannon, and William H. Hannon executed their three promissory notes, aggregating $14,969.31, dated at Xenia, Ohio, and payable to the order of Joseph E. Hannon, one of the makers. They were subsequently transferred to the complainants before maturity for a valuable consideration. Clara M. Hannon is the wife of Joseph E. Hannon, and at the time the notes were signed she possessed a small separate estate; and in each of the notes she inserted the following provision: 'Mrs. Clara M. Hannon signs this note with the intention of charging her separate estate, both real and personal.' As appears from the statement of counsel, a general demurrer was filed to the original bill, and in disposing of it the court expressed an opinion that the complainants could charge the separate estate in existence when the notes were given, but intimated that the after-acquired property could not be thus charged. The separate estate existing at the time of the execution of the notes was of small value, and the complainants desired to present the question of the liability of the after-acquired estate of the wife for the payment of the notes. They therefore amended their bill so as to show that Mrs. Hannon was not, at its filing, or thereafter, possessed of any of the property which she owned at the time of the execution of the notes, but that she had subsequently acquired by inheritance from the estate of her father, who died in 1882, property of the value of more than $200,000. The amended bill also alleged that Clara M. Hannon signed the notes with the intention to bind her separate estate, whether then in possession or thereafter acquired. To the bill as thus amended a general demurrer was also filed and sustained by the court, and a decree entered that the bill be dismissed. From this decree the appeal is taken.

The case thus presents the single question whether the separate estate of the wife, Mrs. Clara M. Hannon, acquired by her by inheritance from her father, in 1882, is chargeable with the payment of the notes described, executed, and delivered by her and others in March, 1880.

A. B. Cummins, for appellants.

[Argument of Counsel from pages 119-123 intentionally omitted]

At common law, a married woman is disabled from executing any promissory notes, either alone or in conjunction with her husband. A note or other contract signed by both is the obligation of the husband alone; and, in the absence of legislation, a separate estate to her can only be created by conveyance, devise, or contract, and remedies against such estate can be enforced only in equity. At the time Mrs. Hannon signed the notes in controversy, married women in Ohio were subject to their common-law disabilities, except with respect to certain statutory contracts, and had power to charge their separate estates only in accordance with the ordinary rules of equity. Subsequently, in 1884, the laws of Ohio were amended, authorizing thorizing married women, during coverture, to contract to the same extent and in the same manner as if they were unmarried. Amendatory section Rev. St. 3108-3111. And in March, 1887, it was further provided that 'a husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might, if unmarried, subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other.' But at the time the notes in question were signed by Mrs. Hannon the rights and liabilities of married women in Ohio, so far as they differed from the doctrine of the common law, were determined by the following sections of the Revised Statutes, which embodied the provisions of the act known as the 'Keys Act,' passed in April, 1861. These sections are as follows:

'Sec. 3108. An estate or interest, legal or equitable, in real property belonging to a woman at her marriage, or which may have come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, shall, together with all rents and issues thereof, be and remain her separate property, and under her control; and she may, in her own name, during coverture, make contracts for labor and materials for improving, repairing, and cultivating the same, and also lease the same for any period not exceeding three years. This section shall not affect the estate by the curtesy of a husband in the real property of his wife after her decease; but during the life of such wife, or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or incumbered by him, unless she join therein with him in the manner prescribed by law in regard to her own estate.

'Sec. 3109. The personal property, including rights in action belonging to a woman at her marriage, or coming to her during coverture, by gift, bequest, or inheritance, or by purchase with her separate money or means, or due as the wages of her separate labor, or growing out of any violation of her personal rights, shall, together with all income, increase, and profit thereof, be and remain her separate property and under her sole control; and shall not be liable to be taken by any process of law for the debts of her husband. This section shall not affect the title of a husband to personal property reduced to his possession with the express assent of his wife; but personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care, or protection thereof, but the same shall remain her separate property, unless, by the terms of said assent, full authority is given by the wife to the husband to sell, incumber, or otherwise dispose of the same for his own use and benefit.

'Sec. 3110. The separate property of the wife shall be liable to be taken for any judgment rendered in an action against husband and wife upon a cause existing against her at their marriage, or for a tort committed by her during coverture, or upon a contract made by her concerning her separate property, as provided in section 3108.

'Sec. 3111. A married woman, whose husband deserts her, or from intemperance or other cause becomes incapacitated, or neglects to provide for his family, may, in her own name, make contracts for her own labor, and the labor of her minor children, and in her own name sue for and collect her own or their earnings; and she may file a petition against her husband, in the court of common pleas of the county in which she resides, alleging such desertion, incapacity, or neglect, and, upon proof thereof, the court may enter a judgment vesting her with the rights privileges, and liabilities of a feme sole, as to acquiring, possessing, and disposing of property, real and personal, making contracts, and being liable thereon, and suing and being sued in her own name; but after such judgment the husband shall not be liable upon any contract so made by her in her own name, or for any tort thereafter committed by her.'

Sections 4996 and 5319 should also be quoted, as they are supposed by the appellants to have some bearing upon the questions presented.

Section 4996 is as follows: 'A marmed woman cannot prosecute or defend by next friend, but her husband must join with her, unless the action concerns her separate property, is upon her written obligation, concerns business in which she is a partner, is brought to set aside a deed or will, or to collect a legacy, or is between her and her husband.'

Section 5319 is as follows: 'When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced, as if she were unmarried, and her separate property and estate shall be liable for the judgment against her, but she shall be entitled to the benefit of all exemptions to heads of families.'

These last two sections originally were parts of an act passed in 1874.

It has been held by the supreme court of Ohio that the legislation contained in these provisions, considered either by itself or in connection with the act of March 30, 1874, the provisions of which are embraced in sections 4996 and 5319 of the Revised Statutes, does not enlarge the capacity of married women to make contracts except in the instances specifically mentioned. The case of Levi v. Earl, reported in 30 Ohio St. 147, maintains this position, after an elaborate analysis and consideration of the legislation on the powers and disabilities of married women in the state. That case was decided, it is true, by the supreme court commission of Ohio, and not by the supreme court of the state, but that commission was appointed by the governor of the state, under an amendment of the constitution adopted to dispose of such part of the business on the docket of the supreme court as should by arrangement between the commission and the court be transferred to the commission. The amendment declares that the commission shall have like jurisdiction and power in respect to such business as may be vested in the court. A decision of the commission upon a question properly presented to it in a judicial proceeding is therefore entitled to the like consideration and weight as a decision upon the same question by the court itself, and is equally authoritative.

The case cited, among other things, adjudges and declares (1) that by the provisions of law quoted the wife is authorized to make contracts in her own name for labor and materials for improving, repairing, and cultivating her separate estate as defined by them, and for leasing the same for a term not exceeding three years, and that upon such contracts the wife is liable to an action at law and to a judgment and execution as a feme sole, but that all her other engagements, debts, or obligations are void at common law, the same as before the adoption of the provisions mentioned; (2) that by those provisions the marital rights of the husband were divested as to the wife's general estate, and the wife was invested with the control of the same, and could bind it not only by the contracts which she was authorized to make in her own name, but to the same extent as she could charge her separate estate in equity before the provisions were adopted; (3) that the power of a court of equity to charge the separate estate of a married woman as existing and exercised before those provisions were adopted still existed not only as to such separate property, but also as to her separate property as defined by those provisions, except as to such contracts as she was authorized to make in her own name, upon which a remedy at law was given by the statute.

It has also been held by the supreme court of Ohio that sections 4996 and 5319 of the Revised Statutes, which embody the provisions of the act of March 30, 1874, were intended simply as an amendment to the Code of Civil Procedure, and did not affect or enlarge the rights or liabilities of married women, but related merely to the remedy. Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136; Avery v. Van Sickle, 25 Ohio St. 270.

The powers and liabilities of married women not being affected in any particulars except those mentioned by the legislation of Ohio previous to the execution of the notes in controversy, the defendant Mrs. Hannon did not charge her subsequently acquired estate at law for their payment when she signed them in connection with her husband. Even if, under the legislation in question, she would, by the decision in Williams v. Urmston, 35 Ohio St. 296, which is said to qualify in some respects the decisions in Levi v. Earl, have charged at law her separate estate existing at the time of the execution of the notes in the absence of the express statement in them that she intended thus to charge it, there is nothing in the legislative provisions adopted which enlarges her power at law to charge any future-acquired estate. The question, then, remains to be considered whether her after-acquired estate is chargeable in equity. That is to be determined by the ordinary rules of equity, and we think it is clear that the contracts of married women are not chargeable in equity upon their subsequently acquired estates.

The separate estate of a married woman, as we have stated, is, in the absence of legislation on the subject, created by conveyance, devise, or contract. Its creation gives to her the beneficial use of the property, which otherwise would not be brought under her control. As to such property, she is regarded in equity as a feme sole, and it was therefore formerly held that her general engagements, though not personally binding upon her, could be enforced against the property. This doctrine, however, has been modified in modern times. It is now held that to charge her separate estate with her engagement it must have been made with an intention on her part to create a charge upon such estate; that is, with reference to the property, either for its improvement, or for her benefit upon its credit. There has been much divergency of opinion and some conflict, both in the courts of England and of this country, as to what is necessary to establish such intention on the part of the wife to charge her separate estate for her contract. It is conceded that there must have been an intention on her part to effect such a charge, otherwise her engagement will not have that effect.

The numerous decisions in the high court of chancery of England have shown this divergency and conflict in a marked degree. Lord Thurlow placed the right of the wife to charge the property upon her right as owner to dispose of it without other authority. Hulme v. Tenant, 1 Brown, Ch. 16; Fettiplace v. Gorges, 3 Brown, Ch. 8. But this theory was afterwards rejected by Lord Loughborough, who denied the liability of a married woman's separate estate for her general parol engagements, and explained the previous cases upon the ground that the securities which the wife had executed operated as appointments of her separate property. Duke of Bolton v. Williams. 2 Ves. Jr. 138.

The doctrine proceeded upon the assumption that the wife's separate estate was not liable for her general engagements, but only for such as were specifically charged in writing upon it. This theory Lord Brougham rejected, holding that there was no valid distinction between a written security, which the married woman was incapable of executing, and a promise by parol, and that mere parol engagement of the wife was equally effective to create a charge as her bond or note. Murray v. Barlee, 3 Mylne & K. 209.

The reasoning of Lord Brougham to establish his views was afterwards met and rejected by Lord Cottenham. Owens v. Dickenson, 1 Craig & P. 48.

The court of appeals of New York in the case of Yale v. Dederer, 22 N. Y. 450, considered very fully the evidence which would be required to charge the separate estate of the wife upon her contract, and in its examination reviewed the various decisions of the English court of chancery, pointing out their many differences and conflicts, and placed its decision upon this ground: that such estate could not be charged by contract unless the intention to charge it was stated in the contract itself, or the consideration was one going to the direct benefit of the estate. In that case a married woman signed a promissory note as a surety for her husband, and it was held, though it was her intention to charge such estate, that such intention did not take effect, as it was not expressed in the contract itself.

In the case of Willard v. Eastham, 15 Gray, 328, the same question was elaborately considered by the supreme judicial court of Massachusetts. In that case a debt was contracted by a married woman for the accomodation of another person, without consideration received by her, and it was held that the contract could not be enforced in equity against her separate estate unless made a charge upon it by an express instrument; and the court concludes, after a full consideration of the subject, by observing that the whole doctrine of the liability of a married woman's separate estate to discharge her general engagements rests upon grounds which are artificial, and which depend upon implications too subtle and refined; and that 'the true limitations upon the authority of a court of equity in relation to the subject are stated with great clearness and precision in the claborate and well-reasoned opinions of the court of appeals of New York in the case of Yale v. Dederer,' which we have cited, and says: 'Our conclusion is that when by the contract the debt is made expressly a charge upon the separate estate, or is expressly contracted upon its credit, or when the consideration goes to the benefit of such estate or to enhance its value, then equity will decree that it shall be paid from such estate or its income, to the extent to which the power of disposal by the married woman may go. But where she is a mere surety, or makes the contract for the accommodation of another, without consideration received by her, the contract being void at law, equity will not enforce it against her estate, unless an express instrument makes the debt a charge upon it.'

We concur in these views as to the limitation on the authority of a court of equity in relation to the subject. In this case the amended bill avers that the defendant Mrs. Hannon executed the notes in question with the intention of charging her after-acquired property; but, inasmuch as her contract is in writing, the averment can be regarded only as the pleader's conclusion, which must be determined by the application of the law to the undertaking itself. There is nothing in the written agreement which makes any reference to an after-acquired estate.

In Pike v. Fitzgibbon, 17 Ch. Div. 454, the question as to the power of a married woman to bind her subsequently acquired estate was considered. In that case Lord Justice James said: 'Another point also has been raised, of which we must dispose, and which has arisen, as it seems to me, from a misapprehension of some of the cases. It is said that a married woman having separate estate has not merely a power of contracting a debt to be paid out of that separate estate, but, having a separate estate, has acquired a sort of equitable status of capacity to contract debts, not in respect only of that separate estate, but in respect of any separate estate which she may thereafter in any way acquire. It is contended that because equity enables her, having estate settled to her separate use, to charge that estate, and to contract debts payable out of it, therefore she is released altogether in the contemplation of equity from the disability of coverture, and is enabled in a court of equity to contract debts to be paid and satisfied out of any estate settled to her separate use, which she may afterwards acquire, or, to carry the argument to its logical consequences, out of any property which may afterwards come to her. In my opinion, there is no authority for that contention, which appears to arise entirely from a misapprehension of the case of Picard v. Hine, L. R. 5 Ch. App. 274, and one or two other cases which follow it, in which this point was never suggested. * * * I desire to have it distinctly understood as my opinion and the opinion of my colleagues, and therefore as the decision of this court, that in any future case the proper inquiry to be inserted is, what was the separate estate which the married woman had at the time of contracting the debt or engagement? and whether that separate estate or any part of it still remains capable of being reached by the judgment and execution of the court. That is all that the court can apply in payment of the debt.' Lord Justice Brett, in his concurring opinion, said: 'The decisions appear to me to come to this: that certain promises (I use the word 'promises' in order to show that in my opinion they are not contracts) made by a married woman, and acted upon by the persons to whom they are made, on the faith of the fact known to them of her being possessed at the time of a separate estate, will be enforced against such separate estate as she was possessed of at that time, or so much of it as remains at the time of judgment recovered, whether such judgment be recovered during or after the cessation of the coverture. That proposition so stated does not apply to separate estate coming into existence after the promise which it is sought to enforce.'

It is true that in that case, (Pike v. Fitzgibbon,) as stated by Lord Justice James, it did not appear that the appellant had, since the date of her engagement, acquired any property settled to her separate use, and had not asked by the appeal to vary the judgment as regards subsequently acquired property. 'It is therefore sufficient,' said the lord justice, 'to state, as a warning in any future case, that the only separate property which can be reached is the separate property, or the residue of the separate property, that a married woman had at the time of contracting the engagements which it is sought to enforce.' But in King v. Lucas, 23 Ch. Div. 712, in the court of appeal, the question whether the engagements of a married woman could be charged upon her subsequently acquired estate was actually involved, and the decision in Pike v. Fitzgibbon was held conclusive. Said Cotton, L. J.: 'With respect to her separate estate, she is treated as a feme sole, but it has been decided that it must be separate estate which belonged to her at the time of the making of the contract, and is still remaining at the time when the contract is enforced, and judgment obtained. In Pike v. Fitzgibbon it was held by a learned judge that all separate property could be charged which belonged to the married woman at the time when the contract was enforced, but that was held to be erroneous by the court of appeal, and the rule was laid down that the contract could be enforced only against the separate estate existing at the date of the contract. In the present case, therefore, there is no question as to any principle; the only question is whether certain property was the separate property of the lady when she made the contract.'

In view of the considerations stated and the decisions mentioned, and numerous others which might be cited, we are of opinion that in Ohio the separate property of a married woman could not be charged in equity by contracts executed previous to its existence, for the obvious reason that, in reference to such property, the contracts could not be made. The after-acquired estate was not at the time available in a court of equity to meet the contracts, for at their date it had no existence.

The English Married Woman's Property Act of 1882 provided that 'every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary he shown.' And in section 1, subsec. 4, it was declared that 'every contract entered into by a married woman with respect to and to bind her separate property shall bind not only the separate property which she is possessed of or entitled to at the date of contract, but also all separate property which she may thereafter acquire.' And yet in Deakin v. Lakin, 30 Ch. Div. 169, it was held that this act did not enable a married woman who had no existing separate property to bind by a contract separate property afterwards acquired, and Pearson, J., said: 'In my opinion, according to the true construction of the act, the contract which is to bind separate property must be entered into at a time when the married woman has existing separate property. If she has such property, her contract will bind it. If she afterwards commits a breach of the contract, and proceedings are taken against her for the breach of contract, any separate property which she has acquired since the date of the contract, and which she has at the time when judgment is recovered against her, will be liable for the breach of contract. But the act does not enable her, by means of a contract entered into at a time when she has no existing separate property, to bind any possible contingent separate property.'

It follows that the decree must be affirmed, and it is so ordered. 

Notes