T. D. C. Prentiss et ux, Appellants, vs. Hugh S. Paisley et al., Appellees, 25 Fla. 927

Raney, C. J.: This is an appeal from an order denying an injunction and dismissing a bill of review. The bill of review considered as one for error of law apparent upon the face of the record is maintainable. The term, record, as used in connection with such bills, meaus the pleadings and decree in the canse as to which the complaint is made. Whiting vs. Bank of the United States, 13 Peters, 6; Shelton vs. Van Kleeck, 106 U. S., 532. Looking at the Paisley decree complained ol, we perceive one of its features to be a personal recovery against Mrs.

Prentiss, and the pleading or bill shows the claim to be tor a money demand growing out of a contract; the sum recovered being the amount oí a cash payment alleged to have been made on a •contract for the sale of land in which the complainant charges lie has been defrauded. A married woman is by the common law incapable of making a contract that will bind her personally either in law or equity, and for this reason there can be no personal judgment or decree of recovery against her. Goss vs. Furman, 21 Fla., 406; Randall vs. Bourgardez, 23 Ib., 264; Dollner, Potter & Co. vs.

Snow, 16 Ib., 267; 1 Bishop on the Law of Married Women,

Section 601; Pilcher vs. Smith, 2 Head, 208; McQuaid vs. Fontane, 24 Fla., 509; S. C. 5 So. Reporter, 274; Choppin vs. Harmon, 46 Miss., 304; Bank vs. Williams, Ib., 618; Cary vs. Dixon, 51 Ib., 593; Mallett vs. Parham, 52 Ib., 591; Bank vs. Partee, 99 U. S., 325; Wallace vs. Rippon, 2 Bay, 112; Rodemeyer vs. Rodman, 5 Clarke (Iowa), 426; Lewis vs. Perkins, 36 N. J. Law, 133; Pentz vs. Simonson, 13 N. J. Eq., 232; Pierson vs. Lum, 25 Ib,, 390.

Several of the above authorities are to the effect that where she .has been giving authority by statute to make personal contracts, the proceedings must show the existence of the special circumstances as to or under which the power has been conferred or may be exercised, and others of them adjudicate that when it is sought to charge her property with liability, the bill or other proper pleading must show the character of her estate in the property sought to be eharaged, in order that the court may know that it is chargeable.

The decree assailed does not adjudicate a charge upon any particular estate or property ot Mrs. Prentiss, but the feature of it in question is a personal recovery. If it be rhat a personal judgment or decree may be rendered against a married woman licensed as a free trader under our statute of March 11th, 1879, McClellan’s Digest, pp. 756, 757, it is sufficient on this point to say that Mrs. Prentiss is not sued as such.

A married woman is personally liable for her wrongful civil acts, or actual torts, including frauds not growing out of or founded upon, or directly connected with, or a part of or the means of effecting-a contract which she has undertaken to make; and she may be sued jointly with her husband in respect to such acts, or separately if she survives him. His liability for her torts is a result of the mere fact that by the common-law rules a suit cannot be maintained against the wife alone during coverture. If before or pending the action she dies, the right of action against him falls.

Whenever her coverture avoids the contract it is likewise a bar to a personal recovery for the fraud, and this cannot be overcome by suing ex delieto. 2 Bishop on the Law of Married Women, Sections 254, 255, 256, 261, 263; 1 Bishop, 842, 905-8; Owens vs. Snodgrass, 6 Dana, 229; Smith vs. Taylor, 11 Ga., 20; Knowing vs. Manly, 49 N. Y., 192; Liverpool A. L. Association vs. Fhirhirst, 9 Excheq., 422; Wright vs. Leonard, 11 C. B. n. s.. 257; Capel vs. Powell, 17 C. B. n. s., 473. As to when a tort will be deemed the wife's, and when the husband’s, vide 1 Bishop, 905, and to Bishop, 257-260.

The fraud in the case before us, in so far as it is imputable to the wife, is not one sounding in tort, but is a part of and directly connected with the contract for the sale of the land, and hence not one as to which there is a personal money liability or can be such a personal decree or judgment as to her. The bond for title executed by Prentiss and wife not being a basis for the money recovery against Mrs. Prentiss personally, Norton vs. Turrill, 2 Williams, 144; Dollner, Potter & Co. vs. Snow, supra, 1 Bishop,

section 842, the order of the Chancellor was erroneous, still it is proper, in view of possiblefuture proceedings, to notice another feature of the proceedings before remanding the cause. The Paisley bill states, in effect, that the land involved in this controversy was included in a deed of trust made by Dr. Butte, the former husband of Mrs. Prentiss, to Mrs Simmons, and providing that the land could not be conveyed by Mrs. Butte, but could be conveyed by the trustee upon the written request of Mrs. Prentiss. The .bill of review represents that on July 11th, 1885, piior to the marriage between Mrs.

Batte and Prentiss, they entered into a marriage contract whereby the latter agreed to relinquish and surrender to the former Ins right to control and manage her separate estate and property described in the above deed of trust, which is dated August 23,18S3, and any other separate property then owned, or that she may thereafter own, and that he would suffer and permit, and it authorizes her without let, hindrance, molestation or interference on his part, to hold, occupy, “exert” and enjoy the absolute, unqualified control and management of all such property owned or to be owned by her, with all the rents, issues and profits, and all the receipts and income therefrom by sale, mortgage, lease.or otherwise, as fully and absolute and as free from his debts as if she remained single and unmarried; he surrendering and relinquishing all his marital rights, and also the management and control of her property as her husband, under the laws of this State, and it being stipulated that she does not part with the right to dispose of the interest surrendered to her by Prentiss.

These allegations would not have the effect to create any exception to the doctrine announced above as to the money decree, aud the only further observation necessary to be made as to them now, is : if it be that a cash payment was made to Mrs. Prentiss, or to her husband for her with her consent, or as her authorized agent, which relation he could sustain to her, Tresch vs. Wirtz, 34 N. J. Eq., 124; Baum vs. Mullen, 47 N. Y., 577; Pentz vs.

Simonton, supra, and under the circumstances of the case, as they may be shown to exist, the land involved or her other property, if she have any, can be charged with such payment, the trustee is, as suggested by counsel for appellants, a necessary party to any proceeding seeking to charge any property included in that trust. Lewis v. Yale, 4 Fla., 418; Dollner, Potter & Co. vs. Snow, supra. Whether or not her property is so chargeable is a question we do not feel called upon to discuss in the absence of both proper pleadings and necessary parties.

Though the decree assailed is one absolute upon a decree pro oonfesso, we think a bill of review for error apparent is a proper remedy. Stribling vs. Hart, 20 Fla., 226; Maynard vs. Percault, 30 Mich., 160. The purpose of a bill of review for error apparent is to have the court rendering the decree, give the same relief that the appellate court might under the same circumstances. Evans vs Clement, 14 Ill., 206. Whex-e the bill does not justify the final decree which has been taken upon a decree pro ooufesso, relief may be had from the appellate court on an appeal, Hart vs.

Stribling, 21 Fla., 136, and the same may be secured through a bill of review from the court rendering the decree. The decree appealed from should be set aside. If Paisley shall desire to amend his bill he should he permitted to do so, and as a consequence his decrees should be vacated and his cause proceed on the bill as it may be atnended, but should he elect rather to stand upon his decree modified to the extent of the personal money recovered against Mrs. Prentiss, his decree should be xnodified merely as to such relief against her.

The cause will be remanded for proceedings not inconsistent with this opinion.