Caroline B. Staley, Appellant, vs. A. B. Hamilton et ux., Appellees, 19 Fla. 275

The Chief-Justice delivered the opinion of the court. The bill with its amendments, the answer and the proofs show that Caroline B. Staley and her husband, H. O. J. Staley, (who is not now living) executed a promissory note to Narcissa W. Hamilton, the wife of A. B. Hamilton, whereby they promised to pay Mrs. Hamilton twelve hundred dollars with interest. The consideration of this note was one thousand dollars in gold coin, and the date of the transaction May 4,1866. The money was borrowed for the use of U. O. J. Staley in his business, and was loaned by Mrs.

Hamilton upon the importunity of Staley and his wife, they agreeing to secure its payment by giving a mortgage upon two lots, the separate property of the wife in Marianna. A mortgage was drawn up in due form and signed by Staley and his wife (appellant) and proved for record by a subscribing witness, but was never duly acknowledged as required by the statute, and therefore was not operative as against the wife or her property. Mrs. Staley says she did not intend to acknowledge it if she had been asked to do so. The bill is filed for the purpose of subjecting the separate property of Mrs.

Staley to the payment of the money borrowed under the circumstances stated.

The Chancellor decreed in favor of the complainants (appellees), and held that “ the defendant signed said note with her husband for the purpose of subjecting her separate estate ” to the payment of the note, and directed the sale of the lots described to satisfy the indebtedness. ■ The statute authorizes a married woman owning real estate of inheritance to sell, convey and mortgage the same in the same manner as she might do if she were sole and unmarried ; Provided, Tier husband join in such conveyance or mortgage and the same be authenticated as prescribed by laws regulating conveyances; and provided, also, she acknowledge, separate and apart from her husband, that she executed the same freely and without any fear or compulsion of her husband. (Acts February 4, 1835, and March 6, 1845, McClellan’s Digest, 755, §§6, 9.) According to these statutes a married woman can create a legal charge upon her separate property only by the means so designated.

Peake vs. LaBaw, 6 C. E. Green, N. J. (Eq.,) 269, 282. The English equity rule is that if a married woman enters into a general contract to pay money the inference is that she means to pay it, and if she has a separate estate it will be inferred that she intended to charge such estate with it. An equitable estate is referred to. Lord Brougham in Murray vs. Barlee, 3 Mylne & K., 209, 223, says : “ In all these eases I take the foundation of the doctrine to be this: the wife has a separate estate subject to her own control and exempt from all other interference or authority.

If she cannot affect it no one can, and the very object of the settlement which vests it in her exclusively is to enable her to deal with it as if she were discovert. The power to affect it being unquestionable, the only doubt that can arise is whether or not she has validly encumbered it. At first the court seems to have supposed that nothing could touch it hut some real charge, as a mortgage or an instrument amounting to an execution of a power, where that view was supported by the nature of the settlement.

But afterwards it was more regarded, and the court only required to be satisfied that she intended to deal with her separate property.” And see Story’s Eq. Jur., 11 Ed., §1401, et seq.

But the rule prevailing in this country in regard to the separate statutory property of married women is different from the equity rule in respect to a married woman’s separate estate which is properly an equitable estate and not her legal property — an estate vested in a trustee for her benefit, over the body of which she has no legal power of alienation except such as might be given by the terms of the grant or settlement creating it. Dollner, Potter & Co. vs.

Snow, 16 Fla., 86. •In the case of the separate statutory property, especially under our statutes regulating alienation, the equitable rule cannot prevail, and it cannot be inferred that a married woman intends to alienate her property, except by the prescribed method, when the contract is not for the benefit of herself or her separate property, for the law will not permit her to do indirectly what it forbids her to do directly. In the case of Perkins vs. Elliott and Wife, 7 C. E.

Green, 127, a married wroman had signed a note with her husband as his surety, not for her own benefit or for that of her separate property, and the note containe 1 these words: “ The said obligation to be charged upon the separate estate of said Louisa Elliott,” and the court says that “ it is not within the power of a married woman to charge her estate by any writing except a mortgage acknowledged as required by law, or for debts contracted for the benefit, of her separate estate, or for her own benefit on the credit of it.” This doctrine was affirmed in the same case on appeal in 8 C. E. Green. In Johnson vs.

Cummins, 1 C. E. Green, 97, 104, the Chancellor says: “ The general principle is that a married woman is enabled in equity to contract debts in regard to her separate estate, and ■ that the estate will be subject in equity to the payment of such debts. In order to bind the separate estate it must appe ar that the engagement was made in reference to and upon the faith and credit of the estate.

But where a married woman, living apart from her husband and having a separate estate, contracts debts, the court will impute to her the intention of dealing with her separate estate, unless the contrary is shown.” In Peake vs. LaBaw, 6 C. E. Green before cited, the Chancellor says: “ The courts of this country have declared the estates of married women, held under the married women’s acts, to he liable for debts contracted by them for the the-benefit of their separate estates, or for their own benefit on the credit of these estates. But they go no further than this.” The Court of Appeals of New York, in Yale vs.

Dederer, 22 N. Y., 450, held, upon the question whether the mere signing a note as surety for her husband, with parol proof that credit was given to her separate estate, would amount to an equitable charge, that it would not.' “Ho court has ever held or intimated that farol evidence was admissible to prove that the bond or note of a feme covert was intended to be a charge upon her estate.” “ If investing her with separate property,” says Chancellor Kent in The Meth. E. Church vs. Jaques, 3 Johns.

Ch., 77, “ gives her the capacity of a feme sole, it is only when she is directly dealing with that very property.” We refer to Dolluer, Potter & Co. vs. Snow, 16 Fla., 86 ; Merritt vs. Jenkins, 17 Fla., 593, 597 ; Fairchild vs. House, 18 Fla., 770; Mattair and Wife vs. Card, Admr., 18 Fla., 761; Blumer and Wife vs. Pollok et al., 18 Fla., 707, and Thrasher vs. Doig, 18 Fla., 809, where the effect of a contract by a married women upon her separate property is considered.

The doctrine laid down in New York, New Jersey and in a majority of the States at the present time is that the intention to charge the separate property will not be inferred from the mere fact of the execution of a bond or note, nor unless it is expressed in terms in the contract, or results from the beneficial nature of the consideration as enuring directly to her benefit or the benefit of her property. In the case of Yale vs. Dederer, 22 N.

Y., 450, 459, the Court of Appeals say: “If we desire precision and certainty in this branch of the law we must recur to the foundation of the power of a feme covert to charge her separate estate, and this has heretofore arisen solely from her incidental power to dispose of that estate. Starting from this point it is plain that no debt can be a charge which is not connected by agreement, either express or implied, with the estate.

If contracted for the direct benefit of the estate itself, it would, of course, become a lien; upon the well founded presumption that the parties so intended and in analogy to the doctrine of equitable liens for purchase money; but no other kind of debt can be thus charged without some affirmative act of the wife evincing that intention. * * But there is a strong additional reason why this court should decline at this time to adopt the fictitious theories on this subject which have so long prevailed in the English courts.

Married women are not hereafter to be indebted to equity merely for protection in the enjoyment of their separate estates. They hold them by a legal title, and have a legal right to dispose of them. * * The provisions [of the acts of the Legislature on the subject] show that the Legislature has not even now intended to remove the common law disability of married women to bind themselves by their contracts at large.” In the language of the court in Willard vs.

Eastman, 15 Gray, 328, 335, “ where she is a mere surety or makes the contract for the accommodation of another without consideration receiv ed by her, the contract being void at law, equity will not enforce it against her estate unless an express instrument makes a charge upon it.” And see opinion of the court in Manhattan B. & M. Co. vs. Thompson, 58 N. Y., 80, by Church, C. J.

There are exceptional cases, as where a married woman living separate from her husband, or is doing business on her own account, gets credit on account of such business or on account of her separate property, a Court of Equity may charge such property. Blumer & Wife vs. Pollak, 18 Fla. And see Burch vs. Breckenridge, 16 B. Monroe, 482.

The present case being one where it clearly appears that the wife became security for her- husband for money borrowed for his use by merely signing a promissory note with him, and no valid instrument having been executed by her charging her separate property with the payment, there is no ground for holding that she did so charge it, notwithstanding the money was loaned at the earnest solicitation of both husband and wife.

The statute has provided, as we have seen, that the wife, by deed or mortgage duly executed and acknowledged, may convey her separate real property, her husband joining therein, for any consideration whatever, and so she may secure the payment of any debt of her husband or herself. A deed or mortgage not so executed and acknowledged by her, covering her separate property is of no effect because this is the only method prescribed by law for so conveying or charging it; and a Court of Equity cannot enlarge the statute. The paper signed by Mrs.

Staley and her husband, in the form of a mortgage, not having been duly acknowledged, is of no validity, but is void in law and in equity under the laws of this State. Hartley vs. Ferrell, 9 Fla., 374. Decree reversed.