Norman B. Harwood et ux., Appellants, vs. William Root et ux., Appellees, 20 Fla. 940

Mr. Justice Westcott delivered the opinion of the court. This case arises upon a demurrer to a bill 'filed by appellants against respondents seeking to subject the property of Emma C. Root to the payment of a debt due by her to Susan D. Harwood for goods purchased of her. The material portions of the bill are brief and may be here inserted. Plaintiffs allege first, “that on the 11th day of February, A. D. 1882, your orators sold and delivered to the defendant, Emma C.

Root, with the approval and consent of her husband, the said William Root, a lot of household furniture to be used by the said Emma in her home, and is now in her said home and her said use, in the house erected as the property described in Exhibit A hereto attached, and the said furniture was suitable to the condition in life and estate of the said Emma. 2. “ That upon the delivery of said furniture to the said Emma, she and her said husband executed and delivered to the complainant, Susan D.

Harwood, their promissory note for the sum of fourteen hundred and twenty dollars, payable one year after date, with interest at ten per cent, until paid, for the purchase money of .said furniture, and said furniture was reasonably worth said sum. 3. “That at the time of the sale of the said furniture to the said Emma, it was the separate property of the complainant, Susan D.

Harwood. 4. “ That at the time of said sale of said furniture and the taking of said note the said Emma was seised and possessed of the following described property.” Then follows a description of the property. [Real estate in the city of Jacksonville.—Rep.] 5. “ That your orators knew at the time said credit was given that the said Emma was seised and possessed of said property, and they were induced to give credit to her and part with their said property by reason of the said Emma’s ownership of said valuable property and their confidence in her ability and willingness to pay them as she agreed to do. 6. “ That at the time said credit was given the said William Root was insolvent, which was well known to your orators, and his insolvency, continues down to the date of the filing of this bill, and that the said Emma and her family are in the use and enjoyment of the property purchased by her.” In the premises of one of the deeds under which the property sought to- be subjected here was acquired by Mrs.

Root, the words of transfer to the grantee are “ grant, bargain, sell, alien, convey and confirm unto the said party of the second part, her heirs and assigns,” the habendum and tenendum clause of the deed being “ to have and to hold the aforesaid bargained premises together with all and singular the rights, members, tenements, hereditaments and appurtenances to the same belonging unto the said party of the second part, her heirs and assigns, to her and their own sole and proper use, benefit and behoof in fee simple.

In the other deed covering the property sought to be subjected the words of transfer in the premises are have granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these -presents do grant, bargain, sell, alien, remise, release, convey and confirm unto tlfe said party of the second part and her heirs and assigns forever, the habendum clause being “ to have and to hold the above granted, bargained and described premises with the appurtenances unto the said party of the second part her heirs and assigns to her own proper use, benefit and behoof forever.”- Plaintiffs prayed that a sale might be had of so much of the property described in the bill as was necessary to pay the debt and eosts of suit and for alternative relief.

Defendants’ demurrer to this bill was sustained and plaintiffs appeal, assigning this action of the court as the ground of reversal. There were two general questions involved in the disposition of this demurrer. First. Whether this property is the separate estate or the separate statutory property of Mrs. Root. Second. Whichever it may be, is the debt, described in the bill, in any way a charge upon this property, and if so, in what way is such charge to be satisfied.

To the first question: It is to be noticed here that there is no trustee named in the deed in whom is the legal title, the beneficial interest being in the wife. This is not essential to the preservation of the rights of the wife against the marital rights of the husband if the intent of the-donor or grantor to create a separate estate clearly appears..

The rule in determining whether an estate granted in a. deed of this character here to the wife, that is, a deed directly to the wife without any intervening or subsequent, estate, a simple deed in fee, is her separate estate or separate statutory property, is that “ where the intent to exclude the marital rights of the husband is doubtful or equivocal, or rests on speculation, the statute intervenes and fixes the character of the estate as the separate statutory estate of the wife.” Short vs. Battle, 52 Ala., 456.

Under our present system there is no such thing as an estate in laud in a feme covert, subject, as at common law, to the marital rights of the husband, except so far as the statutory rights of the husband correspond with his common law rights, unless the terms and conditions of the deed under which a separate estate is limited to the wife correspond with the common law marital rights of the husband and then the common law rights of the husband attach, not by virtue of his common law rights, but by and under the terms of the deed conveying the estate.

If the estate is granted to the wife generally and not strictly as separate estate it becomes her separate statutory property, controlled by the provisions of the statute as distinct from the principles of the common Taw, applicable to a like estate, and the rules of

interpretation to determine now whether the estate created by a deed to a married woman is her separate estate, or her separate statutory property, are those which before prevailed to determine whether it was her separate estate or an estate to which at common law the marital rights of the husband would attach. That there may be in this State these two estates in a feme covert is distinctly recognized by the past judicial history of this State.

The nature of these two estates, and the differences between the mode and method of acquiring them are, to a considerable extent, explained in the case of Dollner, Potter & Co. vs. Snow et al., 16 Fla., 96. "We will not here repeat what is there said. What we do say, however, in this opinion, is to some extent based upon the views there expressed. With this introduction as to the nature of these estates we reach the question. Do the words in the premises and habendum and tenendum of these deeds create a separate estate in the wife ?

The general rule as to which there is substantial uniformity upon this subject is that when property is conveyed to a married woman the presumption is that she is to take as her separate statutory property, and to rebut this presumption and create a separate estate the intent must clearly and affirmatively appear upon a consideration of the whole instrument. The want of uniformity, however, in judicial decisions as to the effect of certain words in deeds is distressingly apparent to any one who will examine the reports of the several States of cases involving the

interpretation of words used in deeds of this character. It has been well said that “ words themselves are intangible and •ever shifting formations in air, changing with their combinations, changing with the lapse of time, changing with the locality, effervescent, never to be exactly caught, yet always within and around us.” 1 Bishop, Married Women, 824. It is impossible, as is remarked by Bishop, that uniformity upon such a subject should prevail among judges surrounded by different influences, with different habits of thought, accustomed to hear and to read the utterances of divers minds.

We do not think that there is in these deeds any such •clear, unambiguous language denying the marital rights of the husband as is necessary to create a separate estate. In the case of Lippincott vs. Mitchell, 94 U. S., 767, the .habendum and tenendum of the deed was “ to have and to hold to the sole and proper use, benefit and behoof of her, her heirs and assigns forever.” We can see no essential difference between these words and those used in the deeds conveying the property here to Mrs. Root.

Of this deed the Supreme Court of the United States says: “If it were intended by this deed to give the wife a sepaarate estate, it is remarkable that * * no words clearly apt for that purpose are to be found. It is remarkable, if such an intent existed, that the phrase,£ for her separate use,’ or £ for her exclusive use/ or £ free from the control of her present or any future husband/ or some equivalent for one of them, was not inserted.

T^e omission can only be accounted for upon the hypothesis that the idea of a separate estate was not in the mind of either of the parties* and that hence no instruction upon the subject was given to the draftsman of the deed.

There is nothing in the record to warrant the belief that the purchase and conveyance were not intended to be such a transaction in the ordinary way, without securing to the grantee any special rights touching the property, or any right other than that of the ownership in fee simple. “The only part of the deed which gives a shadow of support to the proposition of the appellants is the language of the habendum. “The same language is to be found in many precedents in books of forms, where, certainly, there was no purpose to create a separate estate.

Thus, in Oliver on Conveyancing* an American work, in the form of a deed by an administrator, page 290, the habendum is, ‘ To have and to hold the same to the said J. C. and W.

W., their heirs and assigns, to their sole use and behoof forever.’ So, in the form of a deed to a corporation, lb., 279, ‘ To have and to hold the same, with the appurtenances thereof, to the said corporation and their assigns, to their sole use and behoof forever.’ Instances to the same effect in other like works might be largely multiplied. “Such was also the ancient English form of the habendum except that the term ‘ only ’ was used instead of ‘ sole.’ “In Lilly’s Practical Conveyancer, published in 1719, in the form of a release in fee, the habendum is, ‘To have and to hold the said,’ &e., ‘ to the only proper use and behoof of the said C. 0., his heirs and assigns forever.’ And such is the modem English form.

Thus, in the form of a deed of feoffment, in 4 Blythewood, 130, the habendum is, ‘To have and to hold the said close,’ &c., ‘to the only proper use of the said [feoffee,] his heirs and assigns forever.’ “We have examined the cases upon the subject, referred to by the learned counsel for the appellants, and many others, both the English and American. Some of them go to a very extreme length in one direction, and some in the •other. Fot a few of them are in irreconcilable conflict. To examine and discuss them in detail would unnecessarily prolong this opinion, and could serve no useful purpose.

We therefore forbear to remark further in regard to them. ‘•‘Without the aid of the rule of doubt recognized by all the authorities upon the subject, we have no difficulty in coming to the conclusion that the deed of Austill cannot be held to have vested in the grantee a separate estate, or any other estate than a fee simple.” It is useless to enter into any elaborate comparison of cases upon this subject for the differences cannot be reconciled. There is wanting in these deeds that clear and manifest intention to exclude the marital rights of the husband which is necessary to create a strictly separate estate.

The property, therefore, is the separate statutory property of the wife and the rights of all of the parties here must be fixed by the Constitution and the statutes controlling the subject and the principles of equity controlling their

interpretation, application and enforcement. The wife not being subject to a personal judgment at law or in equity it follows that the remedy here, if there be one, is in equity against the rem.—the property. The plaintiffs, therefore, have sought the proper forum to enforce their rights. What is the general rule controlling this subject. It is that she is capable of charging such estate in equity the same as though it were held by a trustee with like limitation as to management and control as those contained in the Constitution and the statutes controlling the subject.

See the cases cited to 2 Bishop Married Women, §203, and the text. Again, a wife may charge in equity her separate estate-under circumstances in which a court of law would d eem her personally bound by contract if she were sole. This-is the substitute which courts of equity have devised in place of the legal power to contract; that is, when a court of equity makes a married woman a feme sole as to her separate estate, it, instead of authorizing her to bind her person by contract, authorizes her to charge the estate in like manner as she would bind her person if she were unmarried.

The authority to charge the estate, therefore, is not an equitable substitute for the authority of a person in her own right to convey but a substitute for the authority to contract. In simple language, at law she cannot make a contract resulting in a personal judgment, while in equity she can con - tract, and if she can contract in equity she can charge her estate precisely as she could at law if she were a feme sole and sui juris.

A feme covert in a court of equity as to her separate statutory property has both the legal and the equitable title,, and while under the statute she is not clothed with the rights of absolute dominion, it cannot be said that the investiture of the legal title in addition to the equitable interest which would be the measure of her rights if it was an estate vested in a trustee for her benefit, deprives her of the power to charge her estate if it is of such character as will permit the charge.

The general doctrine as to the separate estate of a married woman, and as to her power to bind or to charge her separate statutory property, so far as her power exists under the statute as well as under trusts,'is that a married woman-possessed of a separate estate is as to all matters pertaining to such estate, except where she is expressly limited by the instrument which created it, or the statute under which she has title, regarded as a feme sole, and may charge or affect it by any act or contract which would be binding at law if she were unmarried. This is the doctrine stated by Mr.

Chief-Justice Dixon in the case of Todd vs. Lee et al., 15 Wis., 373. This ease is well considered, all the English and American authorities are reviewed and the argument we think is conclusive. In this case we have the husband and the wife incurring this debt and both pledging the separate statutory.property. The husband under the statute is entitled to the rents and profits of the separate statutory property of the wife, and to the extent that each of them could bind this property without a mortgage or a pledge they have done so.

The credit here according to this bill was extended upon the basis of the property which is sought to be charged. Both the husband and the wife agree that it shall be bound and the husband was well known to be insolvent. There can be no doubt of the husband’s liability at law, and as he is insolvent his interest and that of his wife should be controlled to pay this debt. The rule prevailing in a court of equity, however, in a case such as this, is to sequester the rents and profits of the property, rather than to sell the corpus or body of the estate.

This is the rule which would prevail in equity as to an estate with limitations like those contained in our statute, and we cannot conclude otherwise than that it should prevail here. North American Coal Company vs. Dyett, 7 Paige, 15. The wife’s property is not here subjected to the husband’s debt. The property is made responsible for her debt incurred for property to be her separate statutory property and the rents and profits'are applied to a debt primarily the wife’s because the husband was a party to the contract and agreement to bind it'and gave his assent to it.

Eor a court of equity to do otherwise would be to sanction an iniquitous fraud. The decree herein rendered is reversed and the case will be remanded with directions to appoint a receiver to take charge of the estate described in the bill and by its management and from the rents and profits to be realized therefrom to discharge the debt of the plaintiffs, unless the defendants wish to take issue upon the facts alleged in the bill, which they may do by proper pleadings, and there may be such other proceedings as are consistent with the opinion herein rendered and conformable to the principles of equity.