Minnie Halle et al., Appellants, vs. Jacob R. Einstein, Appellee, 34 Fla. 589

.Mabry, J.: ' The first two assignments of error on the appeal in ■•this case are, (1) ‘ ‘that the chancellor erred in rendering said decree for the reason that neither the pleadings nor the evidence show that the debt with which ■Minnie Halle’s property is charged is the purchase price of said property, or that said debt was due upon ..•any agreement in writing made by said defendant .

Minnie Halle for the benefit of her separate property, or that said debt is the purchase price of property used with her knowledge and assent in the construction of buildings or for repairs and improvements upon her property;” and (2) “that the chancellor erred in rendering said decree, because the answer of the defendants denies that the debt was contracted upon the faith and credit of defendant’s real estate, or for-the benefit thereof, and there is no evidence to overcome the force of the answer.” The testimony of appellee Einstein is to the effect that Einstein & Lehman sold the goods ■charged in the account filed with the bill to Minnie •Halle, who was conducting a mercantile business in her own name in the city of Jacksonville, and at the time the goods were sold it was known to Einstein & Lehman that Philip Halle, the husband of Minnie Halle, was insolvent, and that she was conducting the business as her own, and the goods were sold upon her •credit alone; that at the time the goods were sold, Minnie Halle owned the store and some real estate situated in the city of Jacksonville, the description of which was not known to witness, and it was upon his knowledge of her possession of said property and her ■credit solely that the goods were sold to her.

Other goods had been sold to her by Einstein & Lehman, and had been paid for by her. That witness assumed her liability for the goods because she was in possession of the property, and the sale was made to her on her sole credit. Witness was sole owner of the account, it having been assigned to him. The testimony of J. B. Hess was that M. Halle was in the clothig business on Bay Street — P. Halle conducting the business. Who M. Halle was intended for, witness could not say. Appellants introduced no testimony. The second

section of

Article XI of the Constitution •of 1885, provides that “a married woman’s separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated for the purchase money thereof; or for money or things due upon any agreement made by her in writing for the benefit of her separate property; or for the price of any property purchased by her, or for labor and material used with her knowledge or assent in the construction of buildings,- or repairs, or improvements upon her property, or for agricultural or other labor bestowed thereon, with her knowledge and' consent.” The first

section of the

article referred to> is the same as the one on the subject in the former-Constitution, with the added words, “without her consent given by some instrument in writing, executed according to the law respecting conveyances by married women.” Before considering the assignments of error a reference to the condition of the law in this-State on the subject of charging a married woman’s-separate property in equity at the time of the adoption of the Constitution of 1885, will not be out of place. In the case of Dollner, Potter & Co. vs.

Snow, 16 Fla., 86, a liability was sought to be imposed by personal judgment in an action at law against married women on a note executed for the purchase money- of real estate bought by them. The distinction between a married woman’s equitable separate estate, and her statutory separate property was pointed out, and it was held that neither the Constitution of 1868, nor the statute of 1845, enabled her to bind her person, either at law or in equity, by contract, or to authorize a suit against her at law.

It was also held that neither the Constitution nor the statute prohibited the wife from acquiring, since their enactment, such a separate estate-as was recognized and known before their existence, and that no restriction was imposed by them on the-right of the wife to become the beneficial subject of a ■settlement or grant with such restrictions, powers and trusts, conformable to law, as the grantor might deem proper. In Fairchild vs.

Knight, 18 Fla., 771, it was held that the feature of the statute of 1845 in reference to filing an inventory of the married woman’s property, and in the absence thereof making it liable to the debts of the husband, was repealed by the Constitution of 1868, but in other respects the statute continued in full force under the Constitution. In Blumer vs.

Pollak, 18 Fla., 707, it was decided that where a married woman carries on business in her own name, having property employed in such business, and purchases goods upon her sole credit for the purpose of such business, her separate property may be ■charged in equity for money due for the goods purchased. The view expressed in the case of Yale vs. Dederer, several times before the New York courts, is quoted with approval.

In that decision it is said: ‘ ‘ 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 be a lien, upon a well founded presumption that the parties so intended, and in analogy to the doctrine of equitable lien for pur. chase money. But no other kind of debt can, as it seems to me, be thus charged without some affirmative act of the wife evincing that intention.” In Staley vs. Hamilton, 19 Fla., 275, it appeared that a wife, .together with her husband, executed a note for money borrowed for the husband, and a mortgage was executed on the wife’s separate real property to secure it, but not properly acknowledged by her.

The wife’s property was sought to be charged with the- amount of the note on the ground that the money was loaned solely on the credit of the wife and her separate property. It did not appear that the money was. loaned for or went to benefit the wife’s separate property, and it was held that the bill could not be maintained.

This, case holds that a charge upon a married woman’s separate property may arise in equity, where it must be-necessarily inferred from the fact that the debt is contracted for the benefit of her property or estate, in analogy to the doctrine of equitable lien for purchase-money, that she intended the payment to be made out of her own property, or where, living separate from her husband, the debt is contracted by her for her own personal benefit.

It is said in argument in this case, after stating the English equity rule in regard to the wife’s separate estate: “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.” In Harwood vs.

Root, 20 Fla., 940, the bill alleged that furniture was sold to the wife-with the approval and consent of her husband to be used in her home. Upon delivery of the furniture to-the wife, a note was given for its price by the husband and wife, and she was seized and possessed of certain, described real estate which, according to the conveyances to the wife attached as exhibits to the bill, comstituted her separate statutory property.

The husband: was alleged to be insolvent, and that credit for the-furniture was given to the wife by reason of her ownership of said separate property, and that the wife and; her family used and enjoyed the furniture purchased.. It was held on demurrer that the bill stated a proper-case to authorize the subjection of the wife’s separate-statutory property to the payment of the price of the-furniture.

Here it was said that the rule on the subject:of charging a married woman’s separate property is,, “that she is capable of charging such estate in equity the same as though it were held by a trustee with like-limitations as to management and control as to those-contained in the Constitution and the statutes controllingthe subject; ’’and that “a wife may charge in equity her separate estate under circumstances in which a court of law would deem 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.” It was also said: “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.” The subsequent cases of Schnabel vs.. Betts, 23 Fla., 177, 1 South. Rep., 692; O’Neil vs. Percival, 25 Fla., 118, 5 South. Rep., 809, and Garvan vs. Watkins, 29 Fla., 151, 10 South.

Rep., 818, announce- and apply the rule that a married woman can charge her separate statutory property in equity for any debt incurred by her for the benefit and improvement of said property. It was held in Garvin vs. Watkins, ■supra, that the court of chancery had the power to sell the corpus of the wife’s separate statutory property, but this decision, though arising under the Constitution of 1868, was not rendered until after the adoption of the Constitution of 1885.

It may be stated, as a result of the decision referred to, that a married woman could charge her separate statutory property for any debt contracted by her for the benefit or improvement of such property, and the power to bind her equitable separate estate depended upon the restrictions, powers and trusts contained in the instrument creating the estate.

The debt contracted, in order to be enforceable against the wife’s separate statutory property, must directly or impliedly relate to such property, but if she made a contract for goods to be added to her other property, or for the benefit and improvement of any part of her separate property, her entire statutory property could be charged in equity for the debt.

It is contended for appellants, in the first place, that whatever may have been the rule in this State on the subject of charging a married woman’s separate property in equity for her debts prior to the adoption of the Constitution of 1885, since that time the right to proceed in that court to subject her property for debt is controlled by that instrument; and, in the second place, conceding that under the constitution a married woman’s separate property, both real and personal, may be charged in equity for the purchase money thereof, or that her said property may likewise be charged for money or thing due upon any agreement in writing made by her for the benefit of snch property, it is contended that beyond that her separate property, real or personal, will not be chargeable with the price of property purchased by her unless it is for the construction of buildings, or repairs, or improvements upon her property.

The provision in reference to charging a married woman’s separate property ‘for the price of any property purchased by her’ and found in the third clause of the second

section of the

article referred to, is qualified, it is insisted, by the terms in the same clause, ‘ ‘in the construction of buildings, or repairs, or improvements upon her property.” The conclusion of counsel, from the premises stated, is that a married woman can not bind her separate property generally for goods purchased by her to be added to her other personal property, unless she does so in writing as.provided in the second clause of said article; and, further, in the absence of an agreement in writing for that purpose, her separate real property would not be bound for the purchase price of personal property in no 'way connected with the realty.

This view, it is claimed, is enforced by the punctuation of the entire section, it being divided into three clauses by semi-colons, and the words of the last clause being divided only by commas.

The construction of the clause contendéd for is, that a married woman’s separate property, real and personal, may be charged in equity for the price of any property purchased by her in the construction of buildings, or repairs, or improvements thereon, and that her said property may likewise be charged for labor and material used with her know! edge or assent in the construction of buildings, or rejjairs, or improvements upon her property, or that her said property 'may likewise be charged for agri-cultural or other labor bestowed thereon with her knowledge and consent.

And it is claimed that unless* said clause be so construed, it will be irreconcilable-with the second clause, and render the first one entirely superfluous. We can not subscribe to the construction contended for by counsel. The second

section of the

article mentioned, in our judgment, regulates the right to subject, in equity, a married woman’s separate real and personal property to the payment of debts or-obligations contracted by her in reference thereto. The third

section provides that the Legislature shall enact such laws as may be necessary to enforce the-provisions of this article, but it is self-executing sufficient to constitute a complete regulation of the subject, and legislation is not indispensable to its enforcement.

The manifest purpose of the convention was to-provide for and regulate in the organic law not only the right of married women to acquire and hold property, as had been done before, but also the extent to-which their separate property may be subjected in equity to the payment of debts or obligations contracted by them in reference to it, as well as the liability of their said property to be taken in payment of' the debts of their husbands. This being the manifest purpose of the convention in the

article mentioned it must be regarded as the paramount regulation on the-subject and as furnishing the controlling law in reference to subjecting married women’s separate property to the payment of debts or obligations contracted by; them in reference thereto. Cooley’s Const. Lim. page 74 (5th ed.); Bartlet vs. King, 12 Mass., 536; Tong vs. Marvin, 15 Mich., 60; Heckmann vs. Pinkney, 81 N. Y., 211. We discover no irreconcilable conflict between the second and third clauses in said article.

We-can conceive of an obligation for money or thing due-upon an agreement by a married woman for the benefit of her separate property that would not be included in a demand for the price of property purchased by her, or for labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property, or for agricultural or other labor bestowed thereon.

Where the demand is for labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property, or for agricultural or other labor bestowed thereon, no agreement in writing is necessary to charge her separate statutory property, nor is any written agreement to-that effect necessary to charge her separate statutory property for the price of any property purchased by her in conformity to law regulating the purchase.

Any demand for money or thing due upon an agreement for the benefit of her separate statutory property not included in the demands mentioned would have to be in writing; otherwise it could not be enforced. The first clause provides that a married woman’s separate real' or personal property, that is, any such property owned by her at the time, may be charged in equity and sold, or the uses, renjfcs and profits sequestered for the purchase money thereof.

The equitable remedy for the euforcement of liens for purchase money applied only to real property, but under this clause the purchase money for both real and personal property of the married woman can be charged upon the property .itself. Whether the equitable rule mentioned has been changed by the homestead

article in the Constitution, it is not necessary to say, but the clause we are now considering does unquestionably render both real and personal property in the hands of the wife liable for purchase money as stated. The third clause can operate further and make the separate real and personal property of the wife liable for the purchase price of any property bought by her, whether then in her possession or not. We must give full meaning to all the words of the Constitution, ,if it is possible to do so, as it must be presumed that they were deliberately used for the purpose of accomplishing some object.

Considering the entire section, we think it must be construed to mean that the married woman’s separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestered for the price of any property purchased by her.

The purchase of any property by her augments that much, of course, her separate property, and inasmuch as she is given the right to acquire property by gift, devise, bequest, descent, or purchase, free from the debts of her husband, a corresponding liability is imposed upon her separate property for the payment of the price of any property purchased by her. This seems to us to be the intention of the convention, and hence the only proper construction to be placed upon the

article in question, and to this extent it is only necessary to go here to dispose of the case before us. The bill, as an entirety, sufficiently alleges that the wife, Minne Halle, was possessed of personal and real statutory property. The averments in the first part of the bill as to the character of the personal property are not distinct, but it does appear in connection with the allegation as to the real estate that both were her separate statutory property. The admissions in the pleadings and proof show, we think, that Mrs.

Halle was possessed of separate statutory personal property in the city of Jacksonville, and that she owed for the goods specified in the account attached to the bill. She conducted a mercantile business in her own name, bought goods and paid for them, and, as it appears, was the sole owner of the same in her own right. As to the real estate the proof is different. The bill alleges that she was seized and possessed of two designated lots in the city of Jacksonville as her separate statutory property, but the answer denies that she ever owned such property, and there is no proof that she did.

The answer alleges that she was seized and possessed of two other lots in. Jacksonville, and this is all the proof there is as to the character of her tenure as to these lots. The court decreed that both the personal and real estate be sold to pay the demand of the complainant, and, according to the decision in Crawford & Co. vs. Gamble, 22 Fla., 487, the decree was erroneous so far as the real estate was concerned, if it be admitted that the admission in the answer of such property be sufficient upon which to base a decree.

It does not appear whether the real estate was her equitable separate estate, or her separate statutory property, and the court could not properly deal with it without proof as to the character of the property or estate. There is still another error in the decree rendered. It was adjudged that Philip Halle pay the sum of $436.25. There is nothing in the pleadings or proof to show any liability on his part to pay for the goods. It is distinctly alleged and shown that the goods were sold to Mrs.

Halle on her sole credit, and not on the credit of her husband, and there is no showing that he ever in any way promised to pay for the goods. There is a further contention here that the decree was erroneous because Mrs. Halle was the head of a family and entitled to a homestead exemption out of the real estate. This claim of exemption was set up in the answer, but it vanishes entirely in view of the fact that there is not a particle of evidence upon which to base •any claim of homestead exemption, if, in fact, she was entitled to avail herself of the same.

None of the allegations in the answer as to occupancy of the real estate by her and her family are sustained, or offered to be sustained by any proof. Without intimating whether she could take the benefit of a homestead exemption, we refrain from a consideration of the question in the absence of any proof showing that an exemption could be allowed in any case. Post vs. Bird, 28 Fla., 1, 9 South Rep., 888. What we have said is sufficient to dispose of the assignments of error made.

The decree, in so far as it orders a sale of the real estate therein mentioned and directs a personal liability against the husband, Philip TIalle, is erroneous for the reasons assigned, but was proper to the extent of ordering a sale of the separate statutory personal property of the wife, Minnie Halle, to pay the claim of appellee and costs of suit; and as it is within the power of this court to modify here a decree in chancery by eliminating errors therefrom (Garvin vs.

Watkins, supra), an order will be entered modifying the decree appealed from so as t® include a sale only of the said personal property therein described to pay the amount decreed in favor of appellee and costs of suit. Order to be entered accordingly.