author: Campbell J.:

text:
    Leonard N. Watson v. Louisa Thurber and others.
    There le no legal objection to the making by a wife .of a mortgage to secure her husband’s debts.
    Under the act of 1855 {Comp. L. p. 966) a wife can make such a mortgage of her own estate in the same manner and with the like effect as if unmarried^ And an acknowledgment apart from the husband is not now requisite where a married woman conveys or encumbers her own estate.
    A married • woman gave a mortgage of her own lands to secure a debt of her husband. The testiráony showed that it was given with reluctance, and after a good deal of persuasion by her husband, and at first she declined to acknowledge it; but the officer testified that she finally made an acknowledgment in the usual form, and she afterwards freely admitted its validity to one who had purchased it. On bill filed to foreclose it, she defended on the ground that it wars obtained by undue influence or coercion. JHtld> that the defense-was not made out by the evidence.

      Heard July 13th.

      Decided July 15th.

    Appeal in Chancery from Ingham Circuit.
    The bill was filed to foreclose a mortgage given by said Louisa Thurber on her sole property, to secure a debt of Caleb Thurber, ber husband. The mortgage bore date January 6, ÍSS?, and its acknowledgment was taken by John Marble, a justice of the peace, who certified that she' acknowledged separate and apart from her husband, that she had executed it freely, and without fear or compulsion of any one. A decree of foreclosure having been taken by default, Mrs. Thurber afterwards obtained an order opening the decree, and giving her leave to defend. She then filed her answer, in which she admitted the making of the mortgage, but alleged that the same was signed by her under protest that she did not execute the same freely, and only after the assurance of Watson and her husband that her property and rights therein should not he disturbed in consequence of the making thereof. In reference to this defense the following evidence was taken.
    Louisa Thurber, the defendant, testified: “At the time of the execution of the mortgage, Mr. Watson and John Marble were present; the mortgage was given for the purpose of securing the payment of a debt due by Mr-Thurber to Mr. Watson, of about one hundred and fifty dollars; the debt was for money loaned Mr. Thurber; I do not remember when the loan was made; I first knew of the existence of the indebtedness about the time the mortgage was given; Mr. Thurber told me of it; the way he came to tell me of it was this: he had got some money of Mr. Watson, and had given him a mortgage of his own property to secure the payment of it; I learned •that it had been given from Thurber and Mr. Watson both; Mr. Watson brought it back; it did not suit him In some way; when Mr. Thurber told me of the indebtedness, he ■asked me to sign a mortgage on my property; this was the same day the mortgage was executed; Mr. Thurber had ■never asked me to give this mortgage previous to that day that I remember of; I do not recollect whether any person was present when he asked me to give the mortgage; I think no one was present; don’t know in which room it was; when he asked me to sign the mortgage I told him I did not think Mr. Watson needed a mortgage on my property, and I was utterly opposed to giving it; Mr. Thurber urged me very hard to give it, and told me if I would my property should not be touched for it; I still refused to sign it; I did not say I would not execute it; the conversation about the execution of the mortgage commenced in the forenoon; they came to our house, I should think, about 8 or 9 o’clock in the morning; after I told Mr. Thurber I did not want to sign the mortgage, he and Mr. Watson urged me very hard to execute it; I‘once told Mr. Watson I would not sign it; I do not remember what reply he made to this; ho talked to Mr. Thurber a spell; Mr. Watson and myself, at the time he was urging me to sign the mortgage, were in the sitting room; Mr. Thurber thought that rather than to have a quarrel with the neighbors, I had better sign the mortgage, and I did so; I suppose he meant Mr. Watson by neighbors that he spoke of; he did not say who would make the disturbance, but I took it to be Mr. Watson he meant; I think Mr. Watson did not come back again, but cannot say for certain; there was a good deal said that I can’t remember; I think Mr. Thurber and Mr. Watson each came to talk with me about it alone; I do not remember of any person being there except Mr. Marble; they stayed till they worried me out, teasing me to execute this mortgage; Mr. Thurber did the most of the talking with me about it; the reason he gave me for signing it was that he should have a disturbance and would be made trouble; do not know that he gave any other reasons; he told me he would pay it up without my having any trouble about it; I think the debt was to be paid within a year; Mr. Thurber had more than one conversation with me about it; I remember his taking me into the other room to talk about it as many as three times, and I refused to sign it; this was a room adjoining the one where Mr. Watson was; the reason I gave Mr. Thurber for not signing'the mortgage was that I did not want my property endangered; I told Mr. Watson I did not want to sign it, ■as I had a family of small children and was afraid my property would be taken for it, aud leave them destitute; Mr. Watson said he did not think there was any danger, ■as he thought Mr. Thurber would be -able to pay it up; he said he should not be in any hurry tor the money; he said the money did not belong to him, and he would not be in any hurry for it; 1 urged Mr. Watson to'take the security Mr. [Thurber had given him, and let my property be; I signed the mortgage, I think, as late as noon, and perhaps later; I cannot tell the time; I refused •a long time to sign it, and did not say at all I would do it; Mr. John Marble took the acknowledgment of the mortgage; Mr. Marble asked me if I executed it freely of my own accord; I told him J did not; he asked me again; he might have worded it a little different, — I can’t remember ; I told him the second time I had not done it freely; Mr. Marble dropped the mortgage upon the table, and said: Mr. Watson, it is n’t worth a straw; I do not remember the reply Mr. Watson made to ' this; Mr. Marble then asked me if I did it through fear of Mr. Thurber; I told him I did not do it because I was afraid of Mr. Thurber, — that I did it more to keep peace in the family; I do not know what Mr. Marble then said to me; Mr. Marble asked me some other question, but what it was I cannot tell; I was so excited at the time I did not remember it; Mr. Watson said he would risk it; I do not recollect of anything further; the parties soon after separated; I am still the owner of the premises described in the mortgage, and in the occupation of them; I should not have said that I did not say I would not execute the mortgage, for I remember now that I did tell them both several times that I would not sign it; my statement above that I did not say that I would not execirte it is incorrect; Mr. Watson was present when Mr. Marble asked me if I executed it freely; I cannot say whether Mr. Thurber was present or not, but it seems to me he was sitting by the window; at no time during the taking of the acknowledgment was I alone with Mr. Marble; Mr. Watson, I am sure, was present, and think Mr. Thurber was too; Mr. Thurber gave as a reason why my property should not be touched that he .would pay the debt; I understood that if the debt was not paid Mr. Watson could foreclose the mortgage, and sell my property if he was a mind to; I do not know that Mr. Thurber told me what trouble he meant when he urged me to sign it, but I understood it to be in relation to the- borrowed money. When I signed the mortgage mentioned in the bill of complaint, I expected it to go into Mr. Watson’s hands for the purpose [of securing the loan.”
    Caleb Thurber testified: “ I was present at the execu- * tion of the mortgage to Watson; I was present at the time of the taking the acknowledgment by Doctor Marble;' I do not remember that I was out of the room at any time during the examination of Mrs. Thurber by Mr. Marble in reference to the execution of the mortgage: Mr. Watson was also present; this mortgage was given for my debt; I heard the conversation between Mr. Marble and Mrs. Thurber and Mr. Watson, at the time the acknowledgment was taken; I heard the questions propounded by Mr. Marble to Mrs. Thurber in reference to the acknowledgment; Mr. Marble asked her if she executed the paper freely; her reply was that she did not do it freely; I think the Doctor asked her if she was afraid of me the reason she did not execute it freely, and she replied that she could not say that she was afraid of me, or something to that effect; I think the next move that was made the Doctor threw the paper on the table and said that it was not worth a straw; there were some remarks made by the Doctor and Mr. Watson; Mr. Marble was delicate about acknowledging the mortgage; there was some argument about it between them. Mr. Watson finally said if he would execute the acknowledgment he would risk it; I do not know as anything more was done or said; Mrs. Thurber appeared a good deal excited during the time the negotiations were going on; Mrs, Thurber executed the mortgage at the solicitation of myself ■and Mr. Watson; there was a good deal said, and it took a good deal of persuasion on our part to get her to do it; from the time I proposed to her to sign the mortgage until she did sign it, I should think it was three hours. One reason she gave why she would not sign the mortgage was that Mr. Watson already had a mortgage on my property sufiicient to secure him; another was that she did not want to have her property incumbered; Mr. Watson and myself both told her she should not be hurt for the debt; I told her she should not have the debt to pay, and Watson told her he did not think there was any danger of her having it to pay; when I said I was present at the taking of the acknowledgment of the mortgage, I meant I was in the same room. This room is in the south-east corner of the house fronting the street. During the time of the conversation of taking the acknowledgment, I was sitting on the lounge, as near as I remember; I think I was sitting with my face towards the table where they were doing the business; I might have been walking the floor some of the time for aught I know; I was called out occasionally to tend bar, and I might have been out a part of the time; the previous mortgage given by me to Mr. Watson was given up when the last papers were executed; from the time I first proposed to Mrs. Thurber to sign the mortgage up to the time she did sign it, there were several intervals in the conversation with her about it; we were not talking to her all the time about it; I was called off sometimes to tend bar; I had no other object in getting her to execute that mortgage than to secure the loan; I do not think Mrs. Thurber signed the note accompanying the mortgage; I was present when she signed the mortgage, and saw her sign it; I do not wish to be understood when I said I was out of the room a part of the time that I was out when the acknowledgment was taken; I was present all the time of the taking the acknowledgment.”
    John Marble testified: “ I am the justice of the peace who took the acknowledgment of the mortgage mentioned in Mrs. Thurber’s testimony; I was present during most of the conversation between the parties that has been related in the previous testimony; there are but few points that I remember distinctly in the conversation; I was called by Mr. Watson to go to Okemos to take the-acknowledgment of a mortgage; the' mortgage was drawn up after we got there; whether it was before or after the signing that some difficulty arose about the acknowledgment, I cannot state; there was hesitancy on the part of Mrs. Thurber to make the requisite acknowledgment > I asked the usual questions; I put the questions several times in consequence of this hesitancy; I stated to the parties that it s,was necessary to have a direct answer, yes or no, otherwise I should ' have nothing to do with it; Mrs. Thurber hesitated for some time to answer directly yes or no; stated that she thought the giving the mortgage was unnecessary, and she did not do it willingly; I then asked whether I should suspend the business where it was,' or whether she could answer the questions in the affirmative; I read the form of the acknowledgment; after a good deal of hesitancy she gave an explicit answer,— the answer as recorded on the acknowledgment of the mortgage; my impression is that from the time of the first conversation about the acknowledgment up to the time the business was completed, was about an hour and a half or two hours; Mrs. Thurber seemed laboring under considerable embarrassment at the time; more than under ordinary circumstances; my impression was that she was very loth to make the requisite acknowledgment; she did not seem bewildered, but somewhat excited; I do not remember that she gave her reasons for not wishing to acknowledge the mortgage; when I say I put the usual questions, I mean the usual questions put upon an acknowledgment by a married woman; her answer was as recorded in the acknowledgment; I can say, independent of that, that it was in the affirmative; if an examination separate and apart from her husband means in his absence from the room, I can not state positively that this examination was; my memory does not serve me whether he was in the room or not; I am not willing to say whether he was or not; I saw Mrs. Thurber sign the mortgage; can’t say whether she signed the note in my presence or not; 1 should be likely to take the acknowledgment when Mr. Thurber was out of the room, but I cannot say whether he was out or not; I do not remember.”
    Leonard N. Watson testified that he had the mortgage filled out by Mr. Marble. “I got him to go to Okemos the next morning to take the acknowledgment; we went into the bar room; Mr. Thurber made the remark that he had not spoken to his wife about it, but that it would be all right, and that he would go and see her; he was gone from the bar room some little time, and when] he returned he said his wife declined giving a mortgage; I made the remark that' he ought to have seen her before, and saved me the trouble of coming there; he said, ‘you are not in a hurry,’ and told me to wait a while, and when she had thought of it a little perhaps she would give the mortgage; after a while he came'in and invited me into the sitting room; I went with him and he introduced me to his wife, and told me we could talk it over better there; I told her of the conversation with Mr. Thurber the night before, and told her if she •would sign the mortgage I would feel secure, and that was all I asked; she still objected; said the place washers, and that she did not mean to give any more mortgages on it; some further conversation passed, and Mr. Thurber and myself returned to the bar room. I told them both while in the sitting room, that I thought it was the best thing for tliMu and me too, for them to give me the mortgage. Amer a while Mr. Thurber said he would go and see her again about it. He went out of the bar room, and was gone a short time, and when he returned said, ‘get your justice and take the acknowledgment, she has concluded to give you the mortgage.’ I went and got the justice, and we all went into the sitting room. As we went in she said, ‘I am going to sign it, but not willingly.’ There was no reply made to that remark. She sat by the table with the mortgage before her; I stepped up to the table and directed her where to sign it. She signed her name, and then Mr. Thurber signed it. Previous to her signing it, we called in Lorenzo Watson to witness it. The witness then signed, and then the justice took it and asked the usual question on acknowledgment. The first time he asked her she made some kind of an evasive answer; what it was I can not say, but not to ■ the satisfaction of the justice. The justice told her that he wanted her to answer his question direct, whether she signed of her free will without fear or compulsion from any one. She said, ‘yes, I don’t know that I do it from any fear or compulsion from any one.’ This is all that I now recollect that took place before the mortgage was delivered to me. I do recollect further, that while we were in the sitting room the first time, Mr. Thurber said he would be able to pay the mortgage in a year, I made the remark that that would probably be as soon as I should want it, and perhaps sooner, as I intended that money to buy a certain lot of land as soon as it should come into marketShe replied that if I did not want it before, to let the mortgage be that I had. I told her that I did not feel secure; that if I had thought it was good security I would not have come to get another; that all I wanted wa3 to be secure. I think I made the remark Avhen Mr. Thurber said he would be abundantly able to pay in a year, that if he did there would be no trouble on the mortgage. My opinion is that I did not at any time during the transaction say that in my opinion Mr. Thurber would be able to pay it in a year; I think I did not. The money loaned belonged to me. I did not state during"that transaction that the money was not mine, and that I should not be in any hurry for it. I did not have any interview with Mrs. Thurber other than I have stated,, previous to her giving the mortgage. The first time I heard that Mrs. Thurber made any complaint about signing the mortgage was when the notice was served on me of her application to open the decree. in this case. The other mortgage I afterwards gave up to Mr. Thurber. The premises were advertised, upon the decree in this case. The sale was adjourned twice at the request of Mr. Thurber. The first time he gave as reason that he could not raise the money by the day of sale, but he expected to get some of a Dutchman. Myron W. Barnes came to see me about it for Mr. Thurber. Mr. Thurber came to me the second time, and said there would be no doubt if I could give him further time but that he would get it, for if he did not get it of the Dutchman, Mr. Smith talked of getting it for him. Mr. Smith did raise the money. Smith paid the money to me on the day of sale under the last adjournment, and I assigned the decree over to Mr. Smith; think it was on the 27th day of August, 1859. Smith paid me the full face of the decree and costs. I got to Mr. Thurber’s on the day the mortgage was given, I should think between 8 and 10 o’clock in the forenoon; we were there about an hour and a half. The first time Mr. Thurber went to see Mrs. Thurber about giving the mortgage, I should think he was gone about 20 minutes; the time he went to see,her about it the last time, he was gone 5 or 10 minutes; we were in the sitting room talking about it 10 or 15 minutes. At the time of the signing of the mortgage, Lorenzo Watson, John Marble, myself, Mrs. and Mr. Thurber were present. Mr. Thurber was present when the mortgage was executed, but whether he was when her acknowledgment was taken, or not, I can not say. The signing and the acknowledgment were about one and the same transaction; the acknowledgment was taken very soon after the execution; I am unable to determine whether Mr. Thurber was in the room at the time her acknowledgment was taken, or not. He was passing out and in during the time of the transaction; I did not see that Mrs. Thurber was laboring under any excitement at the time, except that she appeared to be a little riled at me. LThe only reason I remember she gave, why she did not want to sign the mortgage, was that the property was hers, and she did not wish to incumber it any more. I had no previous conversation or acquaintance with Mr. Thurber. I did not threaten Mr. and Mrs. Thurber with any trouble ' or disturbance in case the mortgage was not given; I did not say or do anything, from which, in my opinion, could be drawn any such inference.”
    The following evidence was given in relation to the purchase by Smith:
    Myron W. Barnes, testified: “ I heard the testimony of Mr. Watson, given to-day. I am the Barnes spoken of by him as going to him from Thurber, to get a sale adjourned; I went at Mr. Caleb Thurber’s request; I had something to do in relation to that sale after that, at Mr. Thurber’s request. He requested me to find some person that had some money to lend him to pay this mortgage to Mr. Watson. I went to Morrison to get the money, and he had not got it. Thurber came to me after that, and gave me a dollar to pay me for my time, and requested me to go to' Geo. M. Smith’s, and get him and go to Mr. Watson’s, and see what arrangement could be made about the postponement of the sale. I did so. Smith and I went to Mr. Watson’s together. Mr. Watson said he was willing to accommodate Mr. Thurber, but that he was in need of fifty dollars very much; that he would sell the mortgage. Smith and myself then went directly from there to Mr. Thurber’s. It was along in the evening when we got there. We went into the diningroom. Mr. and Mrs. Thurber were there. Mr. Smith told them he would try to raise the money, and purchase the mortgage, if it was a good mortgage, and would give them some time on it. Mr. and Mrs. Thurber both stated that Watson’s mortgage was a good mortgage. Mrs. Thurber stated that William Hinman had a mortgage on the premises, but that it was not a good one-; that she did not-sign it willingly; but that Watson’s mortgage was a good mortgage, and if they could get the money to pay it up, they could get along.”

      Mr. Smith, testified: “Mr. Barnes came to me to go and see Mr. Watson, and I went with him to Mr. Watson’s, as stated by Mr. Barnes. I told Mr. Watson that if he would postpone the sale, I would try to raise the money, and would have the mortgage assigned to me. Mr. Watson said all he wanted was the money. I remember of going to Mr. Thurber’s, as stated by Mr. Barnes. Mr. Watson at the time we saw him, agreed to postpone the sale. At. Mr. Thurber’s, Mr. Barnes told Mr. and Mrs. Thurber that we had got Mr. Watson to postpone the sale, so that I could raise the money. I asked them if it was a good mortgage, arid told them if it was I would have it assigned to me; and they said it was a good mortgage, and Mr. Watson ought to have his pay. In the conversation it was stated between them that if they could get money to pay this mortgage, they could beat Hinman out of his mortgage; that she did not sign Hinman’s mortgage willingly. Which one of them said this I can not tell. I recollect Mrs. Thurber said she did not sign Hinman’s mortgage willingly. The day before the sale I got the money. On the day of sale I came to Lansing, where the sale was to be, and Mr. and Mrs. Thurber were there. I told them I had got the money, and would have the mortgage assigned to me, and would give them a year’s time, and asked Mrs. Thurber if it was all right, and she said it was. I paid the money over to Mr. Watson within twenty minutes or half an hour after, and took an assignment from him. I paid him two hundred and sixty-one dollars and forty-three cents. I paid what I supposed to be the full face of the decree. I think this was the 27th of August, 1859. I let the sale go down. I waited the year before I made any further move. I then caused the premises to be advertised for sale. When the year was nearly out, I heard that Mrs. Thurber had commenced proceedings against Mr. Watson, to defend the mortgage. That was the first I had ever heard that Mrs. Thurber found any fault with the mortgage. I think I charged them twenty-nine dollars for my trouble and services; I have never received anything back, of the money I paid Mr. Watson. Thurber assigned to me a certificate for a deed of forty acre's of land, to secure me for my services and trouble, but I found it would cost more to redeem it than it was worth, and I let it go.”

      J. W. Longyear, for complainant:
    The statute requiring the acknowledgment of the wife to be separate, &e., from the husband, has no application to conveyances by her of her separate property: — Fisk v. Stubbs, 30 Ala. 335; Blood v. Humphrey, 17 Barb. 660.
    A mere unwillingness on her part will not vitiate her execution of the mortgage. There must have been a coercion or control- of her will practiced upon her by duress or Otherwise.
    Even if the mortgage was voidable for the causes alleged, Mrs. Thurber has affirmed it by her subsequent conduct, in such a manner that honesty and fair dealing require that she should not now be permitted to avoid it: — Fulton v. Moore, 25 Penn. St. 468; Needles v. Needles, 7 Ohio St. 432.

      S. L. Kilbourne, for Mrs. Thurber:
    The evidence sufficiently establishes that the execution'of the mortgage was obtained by coercion: — Louden v. Blythe, 16 Penn. St. 532; 2 Washb. Real Pr. 560.
    If the wife is allowed to pledge her property for the husband’s debts, her mortgages for that purpose must be free from symptoms of fraud, coercion, or undue influence: Hollis v. Francois, 5 Texas, 195; Sampson v. Williamson, 6 Texas, 102; 3 Johns. Ch. 550.
   Campbell J.:

The defense in this case is based upon the claim that the mortgage which was given by Mrs. Thurber on her own property (her husband joining with her) as security for his debt was not fully executed and acknowledged. There is no legal objection to the making by a wife of a mortgage to secure her husband’s debts. And under the act of 1855, a wife can make such a mortgage in the same manner and with the same effect as if unmarried. The peculiar acknowledgment formerly required is not now requisite where she conveys her own estate.

We do not think the defense of undue influence or coercion made out. Making every allowance for the facility offered by the marriage' relation of using against the wife a degree of influence not possible in most other cases, we do not think a comparison of the testimony on both sides justifies us in assuming that Mrs. Thurber signed the mortgage against her own free will in the proper sense of the term. She was reluctant, hut her reluctance was not, we think, so extreme as to show that it was improperly overcome. Her subsequent statements to Mr. Smith freely admitting the validity of the mortgage are not consistent with any theory of improper conduct in her husband or Mr. Watson.

Decree affirmed, with costs.

Manning and Christiancy JJ. concurred.

Martin Ch. J. was absent.


source: Caselaw Access Project

author: Christiancy J.: Campbell J.:

license: Public Domain

text:
    John G. Glover v. Deborah B. Alcott.
    In on action by a married woman for property which sho claim* as her own, Iho declarations of her husband aro not competent evidence against her.
    "Where there is no evidence as to the time when an indebtedness accrued npon which judgment has been renderod, it will bo regarded os having acorued at the date of the judgment.

      Tf a married woman willingly allows her separate property to be so mixed and mingled with, that of her husband as not to be distinguishable, or acquiesces in its being so miDgled, such property, as to the husband’s creditors, is to be treated as relinquished to the husband.
    The statute of this State, which provides that “the real and personal estate of every married woman shall be and remain the estate and property of such married woman, “and shall not be liable for che debts, obligations and engagements of her husband, and may be contrácted, sold, transferred, mortgaged, conveyed, devised or bequeathed by her, in the same manner and with the like effect as if she were unmarried,” does not empower a married woman to carry on, on credit, a general trade or business-like that of the purchase of whenc and the manufacture and sale of flour —so as to make the proceeds of the business her own.
    Accordingly, where a married woman was owner of a flouring mill, and her husband, assuming te be her agent, carried on in the mill the business of buying wheat, manufacturing and selling flour, mill feed, &c., as well as doing custom grinding —the business amounting to from $50,000 to $100,000 a year, and being done "mostly on capital borrowed on the credit of the business — it was held, that the property acquired in the business was not protected by this statute from being liable to the debts and obligations of her husband.

      Heard October 22d.

      Decided November 18th.

    Error to Kalamazoo Circuit. The case is sufficiently-stated in the opinion of Justice Christiancy.

      N. A. Balch, for plaintiff in error:
    The statute does not authorize a man-ied woman, living and cohabiting with her husband, to invest her property in general trade, or herself to engage in general trade, such as the proof shows in this case: — Gamber v. Gamber, 28 Penn. St. 363; Keeny v. Good, 21 Penn. St. 349; Switzer v. Valentine, 10 How. Pr. R. 100, and 4 Duer, 96; Lovett v. Robinson, 7 How. Pr. R. 105; Hand v. Cass, 9 Barb. 366; Freeman v. Orser, 5 Duer, 479; Raybold v. Raybold, 8 How. Pr. R. 308; Marsh v. Hoppock, 3 Bosw. 478; Gage v. Dauchy, 28 Barb. 622. The statute simply gives the wife the right to acquire, hold and dispose of her property, without the consent of her husband, but not to use it contrary to the rules and practice of the common law which prevail here.
    The whole business was carried on with borrowed capital. The husband, then, and not the wife, nor her estate, would be liable to pay the debts incurred to obtain this capital. He was actually engaged in using it. It was not capital obtained by the wife in any of the modes mentioned in the statute. If obtained legally, it must have been obtained under common law rules and restrictions, and when thus obtained and placed in possession of the husband, it would by the common law be his, with all the outgrowth, issues and profits thereof.

      E. C. Hinsdale, for defendant in error:
    We insist, that if a married woman has a farm for her separate property, she may, under our liberal statutes relating to her rights, carry it on and have the crops as her own. If it is wild land, she may improve it and then carry it on. If it is a mill, she may carry on the business for which such property is alone valuable. If a valuable water power, she may with her own money and property improve it, and put it in a situation to be profitable, and then carry on the business with it thus improved. In no other way could she reap the full benefit of the provisions of the statute.
    By this “the rents,'profits, and income,” of her estate are made her own, and her property held at her marriage, and all to which she may afterwards become entitled “by gift, grant, inheritance, devise, or in any other manner, shall he and remain” her property, free from her husband’s liabilities.
    The wife may purchase property, for this method of acquiring it is plainly included in the broad phrase “in any other manner”; and if she may make one purchase, she may make a thousand. She may “sell” her property, and this power carries with it the right to receive the consideration, whether of money or other property. She may “transfer” her property for a consideration paid therefor.
    To carry on a business with her separate property is but to repeat the acts which the statute expressly gives her the power to perforin : — 29 Penn. St. 43; 39 Me. 119; Ibid. 125.
    In Wisconsin .and New York, the statutes on this point omit the words “in any other manner,” as well as the provision making the wife liable on her contracts in relation to her property, and authorizing her to bring suit as if she were unmarried.
    In the Supreme Court of Wisconsin it has been held, under the statute cited, that a married woman may not engage in trade, only so far as it may be necessary to manage the property which she may own: — 5 Wis. 245,
    Even under this decision, the defendant in error might carry on the milling business in this case.
    In New York there has been no decision in the Court of Appeals, but there have been two or three decisions in other courts there, adverse to our position. Such are, 3 Bosw. 478; 5 Duer, 479.
    But the decisions in New York are not harmonious. In another case it is held, that a married woman may carry on business with her separate property : — 2 Bosw. 92.
    The decision in this case is entirely inconsistent with that in 5 Buer, and the two are utterly irreconcilable.
    But even if the statute does not authorize the carrying on of business like this by the wife, still the avails of the business would not belong to the husband: — 15 Ind. 254; 3 Allen, 131.
    Obtaining money on a mortgage of the wife’s lands created a charge upon them. The fact that the husband gave his notes only made the debt prima facie his; and this could be rebutted by proof. At common law, the execution by a feme covert of a security, as a bond or note, alone or jointly with her husband, purporting to create a personal demand, and not referring to her separate property, creates a charge upon her property, which can be enforced in equity: — 2 Story Eq. Juris. §1400; 1 Bro. C. C. 16; 15 Ves. 596; 17 Ves. 365; 1 Cr. & Ph. 48; 5 B. & P. 162; 3 Beav. 489; 4 Beav. 319; 13 B. Monr. 381; 16 B. Monr. 482; 26 Ala. 332; 22 Wend. 526.
   Christiancy J.:

This was an action of trover brought in the Court below by the defendant in error, who was a married woman residing with her husband, to recover damages for the conversion of certain bags, barrels, and a quantity of mill feed. The defendant below (plaintiff in error) justified the taking .-and conversion as a constable, by virtue of an execution -.upon a judgment against William W. Alcott, the husband of the plaintiff below. The judgment was rendered on the 23d day of June, 1860, and the execution issued and levy made on .the 29th day of June, 1861. It does not appear wheD the indebtedness accrued upon which the judgment was obtained ; and so far as this point may be material it must therefore be held to have accrued at the date of the judgment.

The mill feed was manufactured at the Allcott Mills, and stored in the Allcott warehouse so called. The mill and the storehouse seem to have been earned on together, and the business done in the name of “ W. W. Allcott, agent.” He testifies that he managed and transacted the entire business, and that, in doing so, he acted as the agent of his wife; but one of the main questions in the case was, whether it was in truth the business of the wife, or that of the husband.

The land on which the mill and storehouse were erected was conveyed to the wife by two separate deeds, in April, 1859; but it does not appear whether it was a gift or a purchase, or by whom the consideration, if any, was paid. Nor does it appear whether she had, at the time of the conveyance, any separate property or capital of her own. The whole business of building the mill and warehouse was superintended by the husband, and, as he says, done in the name of “W. W. Alloott, agent.” The -sign on the mill was, on one side, “Allcott’s mills,” on the other “ W. W. Allcott,” and on the warehouse the same. It does not clearly appear how, or by whom, the means were furnished with which the mill and warehouse were built, though it appears probable that some irons of an old mill previously burnt upon the premises, or the proceeds of them, went into the new mill; and there is some testimony having a slight tendency to show that her credit to a small amount was used in that way — though most of the witnesses swear that they knew nothing of the fact of W, W. Allcott being agent for his wife, except what he told them, and the business appears all to have been done with him under the name and style of “ W. W. Allcott agent.” It appeared however that the joint note of the husband and wife, secured by a mortgage executed by both upon this real estate, was given for twelve hundred and fifty dollars óf the amount. But the title to the real estate is not directly in controversy, and is relied upon by her only as the basis of her right to the personal property in dispute, which is claimed to have arisen as the proceeds of the use of the property, or rather as the joint product of the real estate, the capital or credits used in the business, and the services of the husband as her agent. And, as the debt upon which the judgment was obtained must be considered as having accrued subsequent to the conveyance to her and the erection of the mill and warehouse (which seem to have been completed in the fall of 1869), she must, for the purposes of the present case, be treated as the owner of the real estate, and entitled to the benefits legitimately arising from such ownership, at least until it should be shown by the defendant below, that the conveyances were void for actual fraud as to then existing or subsequent creditors — which it might perhaps have been competent for the defendant to do. (See cases collected 1 Am. Lead. Cas. 71 and 72). But this was not done, and no such question arises.

But it is essential to a full understanding of tbe case to state somewhat fully the nature of the business carried on, and the mode in which it was transacted. As already stated it was all done by the husband, and in the name and style of “ W. W. Allcott, agent,” and not in the name of any other person as principal; and there is no evidence that she ever performed or directed a single act, or even that she had any knowledge of the mode in which it was conducted, or of its nature pr amount. The business coiisisted in the^purchase of grain, manufacturing it into flour, selling the flour, shipping it to an eastern market, disposing of the mill feed, &c., and doing custom work. From the fall of 1859, when it commenced, down to about the time of the suit, its amount was from fifty thousand to one hundred thousand dollars per year; and, as the husband testifies in her behalf, “all or nearly all” of the business “was done on borrowed capital,” most of the money being borrowed of D. A. McNair, who advanced the money for the purchase of wheat, paid the wheat receipts, and had a lien on the flour and avails of the mill, &c., till paid. There is not, I think, any evidence that a dollar of her means, aside from the avails of the business thus transacted, ever went into the business. The only testimony upon this point is [that of the husband, who, of all others, it would be supposed ought to have known the facts, and who would not be likely to omit such as might operate in her favor; and yet his testimony upon this point is exceedingly vague and indefinite, and has the appearance of having been purposely made so, to produce a general impression upon the minds of the jury that she had furnished means to carry on the business, when, upon a careful analysis of the facts stated, no such inference would be warranted. There was no agreement for compensation for his services,' and he swears he never received any compensation but his support and that of his family — though he had been receiving from his brother just before for doing the same kind of business to a less amount, two thousand dollars per year, and when asked the value , of his services as agent of his wife, he says from five hundred to a thousand dollars per year.

Thirty-four promissory notes, amounting in the whole to eight thousand dollars, were executed by the husband, in May, 1859, payable to his own order, and secured by a mortgage executed by the wife upon the real estate; most, if not all these notes were negotiated; and a part •of them came into the hands of McNair, and were passed, as McNair thinks, to the credit of Mrs. Alcott. The accounts were kept in the name of “W. W. Allcott, agent.” The husband, being asked what became of the ■means raised with the above notes of eight thousand dollars, says, “it was used for different purposes; some to buy wheat, and for other purposes in and about the mill; -could not say how it was all used.” It is not shown that ■any of these notes had been paid, and some three thousand dollars of them are shown to have been in the hands of McNair’s assignee at the time of the trial. These notes with the joint note of himself and wife for twelve hundred and fifty dollars already mentioned (and which was not shown to have been paid) constituted all the indebtedness of the husband of which there was any proof. An offer was made by the defendant to prove, by the admissions of the husband, that he was, during the whole time, in debt to a large amount; but this was excluded by the Court, and we think properly; the wife was not to be bound by such an admission of the husband; he might have been examined upon the point, as he was sworn as a witness in the cause, or the fact might have been proved by any other competent evidence like any other fact in the cause — and the proof would not necessarily be confined to judgments and decrees as. supposed by the plaintiff’s ■objection.

There was evidence on the part of the defendant tend ing to prove that the mill and warehouse were built by the husband, that he purchased materials for them, that they had been in his possession ever since, and that he had constantly exercised acts of ownership over them, as though the property were all his own. The defendant, Who was sworn as a witness, testified that he had no knowledge that the plaintiff had any interest in the warehouse (where the property was), or in the; business; that the property levied upon was, at the time, and had long been, in the actual custody of the husband, and that he levied upon it as his.

This statement is sufficient to present the only question we deem it necessary to decide in the present case — the competency or legal capacity of the wife, under our statutes in reference to the separate property of married women, to engage in, and to carry on a general trade or business of this kind. In the present case, it is true, such was the equivocal nature of the testimony upon some of the essential points, its ambiguity, and the entire absence of any evidence upon others vital to her claim, that, when taken in connection with the fact of the husband’s credit as well as his services going into the business — if the case were before us to be decided upon the evidence stated in the bill, we should have no hesitation in saying she had failed to establish her right to the property in question, though her capacity to carry on the business were admitted. It may be a fair question, we think, whether the evidence was such as ought, without further proof, to have gone to the jury. At all events, if the whole evidence is stated in the bill, so far as it bears upon her fight to the property (as we think probable from the frame of .the bill), We should be justified in using the language of the Supreme Court of Pennsylvania, in a somewhat similar case (Gamber v. Gamber, 18 Penn. St. 366): “On the facts which appear in this case the Court below ought to have given a charge which would have swept away the plaintiff’s claim in a single breath.”

A great number of exceptions were taken on the trial to the refusal of the Court to charge as requested, and to the charge as given; many of these were upon merely abstract questions, having no necessary bearing upon the case; and the charge, probably for this reason, was open to the same criticism. The charge in general was fair and impartial; except that it left to the jury some questions upon which there was no testimony. Thus, the Court, as we think properly, charged in substance, that if a married woman willingly allowed her separate property to be so mixed and mingled into a common mass with that of the husband as not to be distinguishable, or acquiesced in its being so mingled, such property, as to the husband’s creditors, was, in a court of law, to be treated as relinquished to the husband. Now it was in proof by her own witness, her husband, that the money raised on his own notes and secured by her mortgage, went into the business. This was his own capital. He was the debtor, and the only debtor; her mortgage was but collateral security; and it is perfectly clear that it was impossible, from the testimony, to distinguish hers from his in the product; if, indeed, there was any evidence that any of the means used in the business were hers. The charge impliedly admits this, but asserts that it was open to explanation whether the notes were on his own account, and whether the sum received belonged to him. As no error was assigned to this, though excepted to, we are not called upon to consider it. But whether this view was right or wrong, there was no evidence in the case tending to make any explanation; yet it was left to the jury to say whether such explanation had been made. Whether there is any evidence tending to sustain or controvert a proposition, is a question of law for the Court; if there be such, its weight is for the jury. But to leave the question to the jury whether there is any evidence upon a particular point, is to make them the judgesj of the relevancy if not of the competency of eviclence. Leaving it to the jury to say whether the explanation had been made, was an implied admission that evidence had been given tending to such explanation.

But, as already intimated, the only question we deem, it necessary to discuss, is the question of the wife’s competency or legal capacity, to carry on this general trade or business. The Court below held that she was thus competent; and this was the fundamental principle of the charge. We shall discuss this question in a somewhat broader form than we think is warranted by the evidence, and upon the admission of all it is claimed the evidence in any manner tends to show; that the real estate was hers, including the mill and warehouse; that the business was all, or nearly all, done upon borrowed capital, or, in other words, solely upon her personal credit and the security which the proceeds of the business furnished, and without the element of her husband’s credit; that a small amount of it was obtained on the security of her real estate, and that she, may have contributed a comparatively insignificant amount of her own means (of which there is no evidence). But the broad question, whether she might not be competent to carry on such a business on her own real estate, with capfital already exclusively her own, and without resorting to her personal credit, is not claimed to be warranted by the facts, and will not be affected by the decision, except so far as it may be affected by the same reasoning. The question is one not free from difficulties. The only ground on which her competency is asserted, is, that the ownership of the real estate, as her separate property, carries with it as an incident the right to use it in any manner, to the same unlimited extent as a feme sole, or any other person might do, to make it produce the greatest profit to the owner; that, as to such property, and the rents, profits and income thereof, and their management, and the uses to which she may choose to apply them, the common law disability of coverture has been entirely removed. There is no express provision of the statute to this effect, but such enlargement of her legal capacity is inferred from the power given to the wife over her separate property by the statute of 1844 (Comp. L. §3289), and that of 1855 (Comp. L. §§3292 to 3295).

It is quite clear, we think, that the act of 1844 did not enlarge the capacity of a married woman to the extent claimed, if it did even give her any right to use or manage the property against the will of the husband. It simply declared that “any property, real or personal,” acquired by her in any of the modes authorized by the act, “ and the rents, profits and income of such real estate, shall be and continue the real and personal estate of such female, after marriage to the same extent as before marriage; and none of said property shall be liable for her husband’s debts, engagements or liabilities, but shall be liable for all debts of the wife contracted prior to her said marriage.” And this is followed by the proviso, that “nothing in this section contained shall be construed to authorize any married woman to give, grant or sell any such real or personal property during coverture, without the consent of her husband, except by order of the Judge of Probate, or of the proper court of the county ; and that, upon a separation between such husband and wife, saving by an adjudication of court, such married woman shall, in no case, be authorized to remove any such property from the premises of the husband without his consent.” And the act further provides that, “if any married woman shall die without disposing of such real estate” (with the consent of the husband or leave of the court must be understood) “he shall have a life estate therein by the curtesy.”

But it can not be denied that the act of 1855 is an enabling act, and removes the common law disability of coverture, so far, at least, as to enable her to “contract, sell, transfer, mortgage, convey, devise, or bequeath” any of her sole property which she is authorized to acquire or hold under the act, “in the same manner and with the like effect as if she were unmarried.” To this extent the power is express; but whatever may be the inferences to be drawn from the statute, this is the extent of the powers expressly conferred. This statute does not, like that of 1844, expressly give her the “rents, profits and income of her real estate,” but, as it makes her complete proprietor, with the absolute power of disposition, without any control from her husband or any court or tribunal, we think the “rents, profits and income” of such real estate, as well as the profits and income of her personal estate (which are not mentioned in either statute), must belong to. her, as an incident necessary to its beneficial enjoyment, which we think it was the policy of the statute of 1855 to secure to her.

But whatever may be the extent of her power to bind herself by contract, under the third and fourth sections, and the amendment of 185'T (though we think these powers must be construed as having reference mainly to the sole property and its management), it is clear that the statute is entirely silent as to her right to manage her property by the application of her time and personal services. And, as at common law her time, services and earnings belonged to her husband, and the statute no where expressly professes to deprive him of these rights, in any respect, or to relieve her from the duties they imply, and can not be construed to limit such rights and duties otherwise than as the power expressly or impliedly given her over her separate property may operate as such limitation by implication; it is clear that her right to devote any part of her time and services to the management of her own separate property (which must thus far limit the husband’s common law rights) must depend entirely upon inference. The powers to be inferred should, therefore, be such as to harmonize with the common law rights of the husband, as far as they reasonably may, consistently with the purpose for which they are inferred, so as to avoid all unnecessary conflict. It was clearly not the purpose of the statute to deprive the husband generally of his right to the time, services and earnings of the wife, or to relieve her from the performance of her household and conjugal duties. But, leaving these in full force generally as they existed at common law, the statute has adopted a principle in reference to such property as she may separately own, which may incidentally modify her husband’s rights and her corresponding duties, so far, and so far only, as may be necessary to enable her to obtain the legitimate income or enjoyment of such property. The power to dispose of her property, by fair implication gives her the right to apply so much of her time and attention to this object as may be reasonably required for the purpose. But it does not necessarily follow that, because the statute has secured to her the income and profits of her separate property, it has therefore authorized her to engage in any and every kind of genei'al business which might be carried on with it or upon it, and given her the profits and income of the business as well as the property. Here is a distinct element entering into the product, beyond that of the income of her separate property. We do not mean to say that she would, in no case, be entitled to the product into the production of which this element might enter’, nor that she would he prevented in all cases from carrying on any business with her separate property. This, might depend upon the nature, circumstances or necessities of the case. Thus, for illustration, had this mill been used by her only for custom work, grinding for tolls; or, had she received by devise, or gift, or inheritance, or by purchase on mox-tgage or execution for a debt due to her (and possibly by purchase otherwise) a mill already stocked with grain, and which prudent management would require to be manufactured into flour before sale; she might be entitled to use the property in this way for this special and temporary purpose, and still be entitled to the product.

But, while it is clear that she may sell any of her property and invest the proceeds at interest or in other property, as occasion may require, and it may be difficult, perhaps impossible, to lay down any general rule applicable to all cases, by which her right to continue and extend these operations, and to devote her time and services to the management of her property, may be governed; and it may be necessary to leave each case to stand mainly upon its own peculiar facts; yet, we think, as a general rule, her rights do not extend so far as to enable her to enter into a general trade and business, like that here in question, and which is to be carried on mainly upon credit; or any other general business thus carried on, the proper attention to which, by herself, would be calculated to require the employment of her time and services generally, to an extent which (if properly attended to) would deprive the husband substantially of all her services and earnings, and render her incompetent to perform her obligations to ■her husband, or the ordinary duties pertaining to the household. If it were competent for her to carry on such general business wholly or mainly by means of her own capital (upon which we express no opinion), yet, to authorize it when done mainly upon credit, would be ’ going entirely beyond the purpose for which the power is inferred — the management and use of her separate property in such manner as to enable her to obtain the legitimate profit and income of the property, and would be making the business the principal, and her separate property only a minor object. If this were permitted, and the wife were allowed to enter into such a business as a permanent ■occupation, any woman who might find a friend to give her a vacant lot, or ten dollars in money, or even a small credit, would have it in her power to deprive her husband entirely of all right to the time and services of the wife in the care and management of his household.

We see nothing in the statute to satisfy us that the Legislature contemplated so radical a change in the legal relations of husband and wife, while they continue to live together and he is competent to the transaction of business, and guilty of no gross neglect of his duties to her and his family. But the husband must, as a general rule, still be regarded as the head of the family, and as the only one of the two authorized to carry on such general trade and business. And when such business as that here in- question may be carried on by the joint efforts and credit of [the two, such business, in ordinary eases, must be considered in law the business of the husband, and its avails liable to the payment of his debts.

We do not speak here of any business or trade usually carried on by females, and which consist largely, and almost necessarily, of female labor, which may be resorted to as a means of support for the wife or family, and which is not of a character inconsistent with a proper attention.to her family duties — such, for example, as that of a milliner. Such trades may stand upon a different ground, and we express no opinion upon them.' Nor do we express any opinion upon the right of a wife to carry on a farm as a direct means of support for herself and family, though the labor may be done mainly by her husband. We confine ourselves entirely to the question of her legal capacity to carry on a general trade or business upon credit, or mainly upon credit, in cases like the present, and those involving the same considerations.

The whole subject is beset with difficulties which must be met as the eases may arise. The object of the statute in securing to the wife her separate property was a benevolent one: and if the statute be confined to the object in view, its operation will be highly beneficial, in securing married women and their families from the consequences of the extravagance or misfortunes of husbands. But, while it should be fairly and liberally construed for these purposes, the greatest care and circumspection are required to guard, as far as possible, against its being made a mere cloak for the frauds of the husband upon his creditors, of which it is peculiarly susceptible; and which it was no part of the legislative design to facilitate.

We have discussed the question of the wife’s right to devote her time and services to the management of her own property and business, and the extent of that right, not because of any services of the wife in the present case — for there were none — but as bearing upon the extent of the power intended to be conferred by the Legislature,

The danger to be apprehended to the rights of the husband from permitting her to carry on such general trade and business may be less than that which is likely to result to creditors of the husband, by putting it in his power to carry on his own business to any extent under the cloak of an agency for the wife. The relation between husband and wife is the most confidential existing in human society; and while _ under our statute the wife may be a witness for the husband and the husband for the wife, neither can be called to testify against the other without the consent of the party against whom the testimony is sought. Under such a system it is easy to see that frauds upon creditors may be perpetrated to any extent without the possibility of detection, if the wife is allowed to carry on business like the present through the agency of the husband. If the right of the wife could be sustained upon the evidence in the present case, it would exhibit the danger to be apprehended in a startling manner. The burden of proof was upon her to show that the property was hers. As she is not shown to have had any such exclusive possession as would dispense with proof of title — the naked possession being in the husband, and tending more to prove his title than hers — and as the property was the product of the business; she must, to establish property in herself, show that the business was hers. But she does not show that a dollar of her capital went into the business; while it is clear beyond dispute that capital raised upon his notes — on which he was the only debtor — was so employed. It was transacted mainly (and so far as the evidence shows entirely) upon credit; but it does not appear that this credit, to the amount of a single dollar, was properly hers. The principal amount — that advanced by McNair — was but nominally upon her credit, and really upon the credit and security of the business itself, transacted, as it "was, by the husband, and upon the avails of which McNair held a lien till paid. So far from her having devoted one moment’s time or attention to this large business of from fifty thousand to one hundred thousand dollars per year, it does not even appear that she knew anything more of its nature or amount, or of the mode in which it was transacted, or took any more interest in it than any other person in that vicinity. The whole was transacted by her husband, he devoting the same time and attention to it as if it were his own, claiming no compensation, and furnishing funds raised upon his own notes. And it may with truth be said that the only circumstance shown by the evidence to distinguish this business or the mode of its transaction from what it would have been, had it been confessedly his own, was the addition of the word “agent,” at the end of his name, in keeping the accounts, &e., and upon one end of the mill and warehouse; while upon the other appeared his own name, simply, without the addition of this potent word.

The judgment should be reversed, with costs, and a new trial granted.

Martin Ch. J. and Manning J. concurred.

Campbell J.:

The questions in this case arise concerning the right of a married woman, under our statute, to carry on a general milling business in her own mill, with the consent and under the management of her husband.

I do not think that we, as an appellate Court, acting upon objections presented by exceptions and brought up by writ of error, are entitled to base our judgment on any view we may take of the facts different from the result arrived at by the jury. We could not look into the evidence for any such purpose, even if it were all before us, which it is not. If the law of the case, as it stood before the Court below, was properly determined there, or if there were no errors committed by the Court below which were excepted to and assigned in error, we. have no choice but to affirm the judgment. The case may be peculiar, but, as it appears to me, the peculiarity is largely dependent on the facts, more than upon the principles of law involved.

It is extremely difficult to harmonize the provisions of our laws relating to the powers and privileges of married women with any of the common law doctrines, or with the mongrel principles applicable in common law countries to their separate estates as administered in courts of equity. The rules of the common law in regard to the powers of married women to contract, were entirely repugnant, in many respects, to those entertained in courts of equity. Neither of the systems had any especial reference to the peculiar personal rights and duties of the marriage relation itself. Those rights and duties are mainly independent of property considerations, and are not in any country necessarily affected by them: — Bish. on Mar. and Div. §§ 37, 38. And I think we are much more likely to arrive at safe and just results, if we regard our Constitution, and the laws which have been passed on this subject, as intended not to patch up and mend with discordant materials any old system, but to substitute a new one, and sweep away entirely every portion of the old one which covered any part of the same ground. We must assume that the people and the Legislature understood what risks were incurred, and determined that any such risks, if they should exist, were less evils than those which were before experienced. It is not to be expected that all persons will look with the same eyes upon these or any other extensive innovations. But to my mind it seems plain that a radical change was designed, and has been effected, and must be acquiesced in.

By the statute of 1855 it is provided as follows, viz: “That the real and personal estate of every female acquired before marriage, and all property, real and personal, to-which she may afterwards become entitled, by gift, grant, inheritance, devise, or in any other manner,' shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations and engagements-of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her, in-the same manner and with the like effect as if she were-unmarried:” — Laws 1855, p. 420. Sections three and four as amended in 185V allow her to sue in her own name, upon all her contracts and rights, and also in all cases where-a husband has unlawfully disposed of, or incumbered, property which the law will not allow to be disposed of without her consent. They also exonerate the husband from suit on her contracts relating to her sole property, and subject her to suit on all her contracts on which the husband is not liable, or where he refuses to perform such contracts: — Laws 1857, pp. 359, 360.

The statute which gives to a married wopian the same power she would have possessed if unmarried, gives her all the power which any one can possess; for an unmarried woman can make any contract which can be made by a man in regard to his property. Nor is the property concerning which the power exists limited to that which is acquired by any particular method. It may be acquired in any manner, unless there is something in the marriage relation itself which prevents this in regard to particular methods of acquiring property.

It was not claimed on the argument, nor can it be consistently asserted, that a wife is, under our statute, incapacitated from doing any act which could lawfully be done, either at law or under the rules of equity as recognized in England. And it is equally clear that nothing can be regarded as a necessary and inseparable incident of the marriage relation, which could be lawfully dispensed with at common law or in equity.

I have been unable to find any limitation on the power of a married woman to acquire property, or to incur liabilities, on the credit of her separate estate. Questions have sometimes arisen concerning the maimer in which her intention to bind her separate property must be signified. The English doctrine goes upon the simple and intelligible ground that, whenever she makes a promise to pay, she must be presumed to intend that promise to become operative ; which can only be in regard to her separate estate:— 2 Spence Eq. Juris. 515 et seq., and note, p. 539. Our statute of 1857 is quite as explicit. But all the authorities agree that she may make the contract, if it is specifically charged. And any such property is, under our statutes, the sole property of the wife.

Nor is there anything in the relation of husband- and wife to prevent the wife from becoming in any event a sole trader. And where she is a sole trader she possesses and may exercise the same right of buying and selling on credit, as well as for cash, that is possessed by any other person. By the custom of London, a wife might trade on her own account, and was subject alone for her debts, her husband not being liable: — Cro. Car. 68, 69. As a sole trader she was liable to bankruptcy proceedings, precisely like all other merchants: — 3 Burr. 1784; 1 W. Bl. 570.

So, by the general rules of equity, a wife might become a sole trader in pursuance of an ante-nuptial agreement, or a post nuptial agreement on a valuable consideration; and in either case she was protected against her husband and Ms creditors: — 2 Spence Eq. Juris. 503; 2 Story Eq. Juris. §§1385-6-7. And in' such cases, where trustees intervened, her 'rights were protected at law as well as in equity (same authorities').

It is very evident, therefore, that there .is nothing in the relation of husband and wife which necessarily precludes a wife from transacting business on her own account, and for her own benefit. It is somewhat difficult to determine, from a system like that of the common law, what incidents were supposed to spring from the relation itself, and what from the rules of property. The husband’s dominion over the wife’s personalty, being absolute, would embrace her earnings, because it embraced everything. It is very clear that a husband had no right to hire out his wife’s services as he pleased, or to compel her to labor away from her home. The only services which he could assert a claim to, from the nature of the relation itself, are household duties, connected with the care of the home and family. These duties it is fair to attach to the marriage relation, as responsive to the duty the husband assumes of providing for and protecting his family. That a wife can not undertake any business which will prevent her performing these primary duties against her husband’s will, so long as he faithfully performs his corresponding duty, may be laid down as a general rule, and perhaps a rule which is universal. But beyond this it seems to me our statutes do not go in controlling her action concerning her own property. And this limitation, as we have already seen, is one which may be removed by her husband’s consent. No one else is concerned in it, and if he is willing no one else can complain.

If, as in the case before us, a wife owns a mill privilege, it must either be left entirely unproductive, or it must have a mill placed upon it. If she can not procure the erection of a mill upon it, then she c n not do as she would, were she unmarried, with the same property. The statute can not certainly be so construed as to give her no right except to keep it unimproved, or else to sell it. Even in New York, where the courts have not been liberal in carrying out these laws, it has been' held that a wife might contract for the improvement of her real estate, and that such a contract, made by her husband as her agent, was legally valid: — Hauptman v. Catlin, 20 N. Y. 247.

When the mill is finished she must either rent it or run it herself. Such property can not always be rented, and there is no legal incapacity to prevent her using it as other owners, whether men or single women, use their mills. If her husband is unwilling to allow her to attend to it personally, she can only do so as far as she does not omit her domestic duties. If it require more care she must employ some assistance. But should she neglect her home for her business, it is not easy to perceive in what way it concerns third persons. Neither would such a breach of duty render such property her husband’s. The law has provided for no escheat or forfeiture for such domestic faults. But with her husband’s consent there can be no difficulty. The ease does not differ from any other trading or business, except that what could formerly be done only indirectly, and through an equitable process, is now legal, and may be recognized and protected in all courts. Any attempt to lay down restrictions or qualifications becomes arbitrary, and beyond the judicial province.

If any agent is to be employed, it certainly will conduce ■more to harmony and domestic peace to allow the husband to act as such agent, if the wife sees fit to select him. There is certainly no recognized rule of law to prevent it. A married woman could formerly at law appoint no agent, and of course could not appoint her husband. The marital relation is no obstacle, for a husband could always appoint his wife to act for him, and each could deal with the other when acting in auter droit. By separating their legal interests the statute has made each free to transact business alone, and therefore removed the disability of the wife to act through an agent. The husband is certainly as fit as any one; and there is no more reason why he should be disqualified for this office than for that of a trustee for his .wife, which he always might be. And the husband has been recognized as a proper agent, in Southard v. Piper, 36 Me. 84; Colby v. Lamson, 39 Me. 119; Manderbach v. Mack, 29 Penn. St. 43; Hauptman v. Catlin, 20 N. Y. 247.

Unless there is an absolute and universal disqualification, then, there is no rule of law which will enable courts to discriminate between one agency and another.

That such a relation may afford means to conceal frauds is undeniable, but the law has never prohibited all acts which may facilitate fraud; and it will never presume either fraud or conspiracy; both of which must be> made out in order to. justify a conclusion against the honesty of such transactions.

It was suggested on the argument that it does not appear affirmatively that the property in this case was purchased with the means of the wife. There is an abundance of evidence that it was a part of the stock of a business Avhich had been carried on in her mill, and, nominally at least, as her business. Apart from this fact, the mere fact of possession by the husband would not make out a prima facie case on either side to determine his or her title. These circumstances were certainly admissible evidence, and had a legitimate bearing on the issue. Together with other facts they satisfied the jury. There is no ground on which we have a right to disregard their finding except that which is laid doAvn by the courts of Pennsylvania, in a series of cases referred to on the argument, that personal property claimed by a married woman shall be presumed to have been bought with her husband’s money, unless the contrary is proven beyond a reasonable d oubt. I know of no basis for any such doctrine. Under the old rule it was well enough, for the presumption then was that the property itself belonged to the husband. But when a married woman has the same control over her property with all other persons, a rule which requires her to prove her ownership by more or different evidence than is required of others, is purely arbitrary, and imposes a burden which courts have no right to impose.

Fraud, in such cases, is a question of fact, and not of law. I think in the case before us the Court below presented the whole case to the jury with great fairness. The peculiar character of the transaction was fully commented on, and their attention was called to every thing which could throw light on the case. Their verdict was not disturbed by the Circuit Court, and I have not been able to discover any legal ground for disturbing it. It is not claimed that 'if the business had been conducted by Mr. Allcott for a' brother, or a person not related to him, the case would not, under the charge given, have been fairly presented to the jury. The real facts are such as to require from a jury a much sharper scrutiny, and are much more suspicious, than if the married relation did not exist. This, however, was fairly laid before them, and we must presume their deliberate conclusion was arrived at by regarding it. Inasmuch, therefore, as I think there was no error in the charge of the Court, nor upon the trial, I am of opinion the judgment should be affirmed.

Judgment reversed.

Note —The names of O. S. May & Brigys as eouusel for defendant in error in this case were accidentally omitted from the proper place.


text:
    Burgess Hall, survivor, &c., v. Milo Soule.
    A promise in writing to pay the debt of another is not valid unless it show the whole terms of the contract: no resort can he had to parol evidence to add to them.
    A verbal promise to pay tho debt of another being: void under the Statute of Frauds, is not a valid consideration for a subsequent promise in writing.

      Heard May 28th and 29th.

      Decided July 15th

      Error to Calhoun Circuit. The facts sufficiently appear by the opinion.

      H. M. & W. E. Cheever, for plaintiff in error:
    The Statute of Frauds affects the evidence of the contract, and not the contract itself: — 3 Met. 399; 4 Lit. 240; 2 A. K. Marsh. 33; 1 Root, 78; 2 Overt. 192; 7 G. & J. 157; 3 Ves. 696. A memorandum is all that is required, and it is immaterial for what purpose the “ note or memorandum ” was made — it is written evidence the statute requires. 1 Pet. 640; 9 Ves. 351. The time is unimportant. Written recognition of a void contract after its creation is sufficient. 1 Pet. 586; 6 Cow. 445; 3 Kern. 587; Holt, 153; 6 Moore, 521; 3 Moore, 15; 3 C. & P. 130; 5 Bing. N. C. 559; Ibid. 577; 3 Atk. 503; 3 Bro. C. C. 318; 3 Ves. 696; 5 Ves. 308; 11 Mass. 6; 5 H. & J. 117; 9 Met. 83; 2 M. & S. 286; 2 B. & P. 238; 3 Taunt. 169; 2 Swanst. 434; 2 Ves. & B. 341; 29 Geo. 294; 4 Munf. 77; 2 M. & W. 653; 15 East, 103; 6 B. & C. 437; 2 A. & E. 500. In a late English case the Court even went farther, and held that a letter of defendant, written after and disaffirming the contract, was sufficient. 9 C. B. 843.
    A sufficient consideration for the promise appeared. If, as we claim, the promise of defendant was collateral to the principal contract, made at the same time, and was an essential part of the credit given to the principal debtor, and the writing a mere subsequent affirmation or evidence of the previous verbal promise, no new consideration was required. The collateral promise was the inducement to the the creation of the debt. 8 Johns. 28; 14 Ves. 190; 3 Comst. 203-9; 11 Johns. 321; 14 Wend. 246; 1 Pet. 476; 3 Met. 396.

      Joslin t& Blodgett, for defendant in error:
    The letter of defendant was not a promise in legal effect to pay the debt of Harrison Soule, but a notice that plaintiff must rely on defendant’s verbal promise: — 3 Dall. 415; 7 Mass. 141; 6 Pick. 509; 17 Ill. 505; 1 Scam. 58; 6 B. & C. 437; 2 Conn. 553; 1 Sandf. 210; 15 East, 103; 8 Johns. 39; Story on Cont. §§ 854, 862; 2 Am. Lead. Cas. (4th ed.) 132.
    The contract must not only be in writing, but be supported by a present consideration. Story on Cont. §§ 782-4; 1 Sandf. 211.
   Campbell J.:

This was an action brought against defendant to recover from, him, as guarantor or surety, the sum of §500, for which it was alleged he became responsible for his son, Harrison Soule. The goods were sold in 1858, and in January, 1859, Harrison Soule, to whom they were sold and charged, gave his notes for the amount due, which remain unpaid. It appeared from the parol evidence that ¡previous to the sale defendant had agreed, if plaintiff’s firm would give Harrison Soule a credit to the amount of §500, that he would be responsible for its payment. The only written instrument offered in evidence was a letter written July 7, 3 861, which, so far as it relates to the transaction in suit, was as follows: “And now I hardly know what to say to you. I think on the whole that you will have to rely on my pledge already made, that as soon and fast as I can, I will see that §500 of the demand you hold against Harry is paid: beyond that I do not think myself under obligation.”

It is entirely clear from the tenor of this letter that it does not undertake to set forth the terms or conditions of any previous contract, but refers to it as a matter understood. The parol evidence shows what this contract was, and explains fully all the conditions and pledges. But under our statute any agreement to pay the debt of another is absolutely void, unless a note or memorandum of it is made in writing. Comp. L. §3183. It has always been settled that the memorandum, must show the whole terms of the contract, and that no resort can be had to parol evidence to add to them. Our statute does not require a contract of this kind to set forth its consideration, but makes no other change: § 318V. It is impossible to draw from this writing any recital or evidence that defendant made any promise to pay for a future credit to be given to Harrison Soule. The plaintiff below sought to rely, upon it as a written memorandum of a former verbal agreement. But it does not recite any agreement, present or past, except to pay existing and not contemplated future indebtedness. Whether such a memorandum of a past transaction would have the full effect claimed for it, becomes, therefore, immaterial.

Viewed as a present contract to pay an • existing debt, it is not and could not well be claimed that the contract is valid, because there is an entire absence of consideration for it, so far as the evidence showed, and the declaration avers none. The previous verbal agreement being null, it could not form a valid consideration for this promise.

The judgment is affirmed, with costs.

Manning and Christiancy JJ. concurred.

Martin Ch. J. did not sit in this case.


author: Christiancy J.:

text:
    Dennis Daly and another v. Liba L. Litchfield and others.
    Where a party against whom costs are awarded in chancery appeals to the Supreme Court, the appeal bond given under § 3597 of the Compiled Laws covers these costs,* as well as the costs in the Supreme Court, in case, the decree appealed from is affirmed.

      Heard July 11th.

      Decided July 16th.

    On case made from Cass Circuit.
    The plaintiffs in this suit filed their bill in Chancery'against Litchfield to obtain the specific performance of a contract. A decree Laving been made in accordance with the prayer oí the bill, and awarding costs against Litchfield, he appealed therefrom to the Supreme Court, and gave the bond provided for by § 3597 of the Compiled Laws. The Supreme Court having affirmed the decree appealed from, with costs, this action was brought on the appeal bond, and the only question in the case was, whether the defendants were liable on the bond for the costs of the Court below; they having paid the costs in the Supreme Court. The Circuit Court gave judgment for plaintiffs.

      J. Hollister, for plaintiffs.

      D. Blackman, for defendants.
   Christiancy J.:

We see no reason to doubt that the condition of the appeal bond (required by § 3597 Comp. L.) extends as well to the payment of costs decreed and taxed to the appellee in the Court beloAV as to those in this Court.

■ The condition of the bond is, “to pay all costs in case the decree or order of the Circuit Court in Chancery shall be affirmed.” By the English practice and that of some of the states the apjjeal does not operate as a supersedeas in the Court below. But under our statute (Comp. L. § 3598) the appeal operates as a stay of all proceedings in the Court below, and the appellee is precluded from taking any steps by the aid of that Court to recover his costs during the pendency of the appeal. The reason is therefore equally strong for extending the security of the bond to the costs in that Court as to those in the appellate Court, and the language extends equally to both.

The judgment must be affirmed.

The other Justices concurred.


author: Manning J.:

text:
    The Town of LaGrange v. Sylvanus S. Chapman and others.
    A town skip treasurer gave bond to “The People of the State of Michigan,” instead of to the township as required by law. It was held that suit could not be brought on this bond in the namo of the township.
    An averment in the declaration that the defendants, by the bond, “acknowledged themselves to be held and firmly bound unto the plaintiffs, by the name and description of the People of the State of Michigan,” does not help the case. The Court must take judicial notice that the State and the township are separate political organizations, and the averment is therefore inconsistent with the bond, which parol evidence can not be received to contradict.

      Heard July 12th and 13th.

      Decided July 17th.

    On case made from Cass Circuit. The case is sufficiently stated in the opinion.

      Muzzy & Beaver for plaintiff:
    The bond, though running to the People, recites the facts which show that it is wholly for the benefit of the town. The bond itself, when read in evidence, supports the averment in the declaration which is claimed to be repugnant, shows the mistake, and designates the plaintiff as the party in interest. Such being the case, we think it would require no violation of the rules of evidence to prove this averment, and that the bond itself vests the right in the plaintiff: — Grant on Corp. 51 and note; 10 Mass. 327; 10 Mass. 360; 21 Pick. 487; 13 Johns. 88; 1 Met. 359; 1 Met. 473; 18 Ill. 38; 28 Penn. 186; Kyd on Corp. 257; Supervisors v. Coffinbury, 1 Mich. 355.

      D. Blackman, for defendants :
    The obligee in the bond who has the legal interest must be the plaintiff’ in debt on bond, although it be stated therein that the bond is made for tbe benefit or use of another than the obligee: — 1 East, 497; 8 Conn. 286; 4 Gray, 81; 9 Wend. 233.
    This is not a case of misnomer, which is a variation from the true name, but on the contrary the Court take judicial cognizance of tbe fact that the town is one corporation and the State another: — 7 Blackf. 86.
   Manning J.:

This is an action of debt on a township treasurer’s bond, brought in the name of _the township against the treasurer and his sureties, on a bond given by them to The People of the State of Michigan, the declaration stating- that the defendants acknowledged themselves to be held and firmly bound unto the plaintiff, by the name and description of The People of the State of Michigan.

The defendants craved oyer of the bond, and demurred to the declaration, and the question is whether the action can be sustained.

The statute requires the township treasurer to give a bond with sureties to the township. Comp. L. § 569. The bond declared on is to the People of the State of Michigan, instead of the township. It is not the bond required by the statute. And if an action can be sustained on it in its present shape, it must be in the name of The People of the State of Michigan, the obligees, unless the averment in the declaration will authorize an action in the name of the plaintiff.

The State of Michigan and the township of LaGrange are separate political organizations; in law corporations, of which we can take notice judicially. This being the case, the averment in the declaration is not consistent but wholly inconsistent with the bond, which parol evidence can not be received to contradict. The judgment must, therefore, be reversed, and a judgment be entered for the defendants, with costs.

The other Justices concurred.