1. Lands in Mississippi belonging to a married woman, which she,
at a stipulated rent, leased to her husband, who entered thereon
and cultivated them in his own name and for his own benefit, are
not, during the term, her plantation within the meaning of the
statute of that state which enacts that all contracts of the
husband and wife or either of them for supplies for her plantation
may be "enforced, and satisfaction secured out of her separate
estate."
2. A contract for such supplies will not bind the separate
property of the wife, unless she be the beneficiary of the
cultivation, and they in fact are purchased for her account and
benefit.
3. A parol lease of lands in Mississippi for one year, made by a
woman to her husband, is not invalid.
4. The recital in a deed of trust of her separate estate,
executed by her and her husband, that it is given to secure her
indebtedness, evidenced by her and his notes, does not estop her
from showing that they were given for sup plies furnished for a
plantation, which he cultivated in his name and for his
benefit.
5. In order to work an estoppel, the parties to a deed must be
sui juris competent to make it effectual as a
contract.
The facts are stated in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Married women, as the code of the state provides, may rent their
lands or make any contract for the use of the same, and may loan
their money and take securities for its payment, and employ it in
trade or business, and the express enactment is that all contracts
made by the husband and wife, or by either of them, to obtain
supplies for the plantation of the wife, may be enforced and
satisfaction secured out of her separate estate. Provision is also
made that when a married woman engages in trade or business as a
feme sole, she shall be bound by her contracts made in the
course of such trade or business, in the same manner as if she was
unmarried. Code (Miss. 1871), sec. 1780.
Page 101 U. S. 241
Sufficient appears to show that Virginia Banks, one of the
defendants, is a married woman, and that A. D. Banks, the other
defendant, is her husband; that they executed three promissory
notes, each for the sum of $2,000, payable to their own order, and
that they endorsed the same in blank; and that the Bank of America,
the plaintiff, is the lawful holder of the several notes. Payment
being refused, the plaintiff instituted the present suit, and prays
judgment for the amount against her separate property.
Process having been served, the defendants appeared and pleaded
three pleas in answer to the declaration: 1. That they never
promised in manner and form as alleged. 2. That they had fully paid
and satisfied the notes before the suit was instituted. 3. That
said Virginia, when the notes were made and endorsed, was a married
woman, and that the same were made and endorsed by her as the
surety and accommodation endorser of her husband, for the purpose
of enabling him to obtain money to carry on a plantation cultivated
by him and not by his wife, and that the notes were not made and
endorsed in payment of money and supplies furnished to the wife to
enable her to cultivate a plantation belonging to her as her
separate property, in accordance with a contract made to that
effect with the plaintiff, and that the notes and endorsements as
to her are without legal consideration, and that she is not liable
to pay the same.
Prepayment was denied by the bank. In its replication to the
third plea of the defendants, it avers that the notes described in
the declaration were not made and endorsed by the wife as an
accommodation surety for the husband, as alleged in the third plea.
Instead of that, it alleges that the notes were made and endorsed
by her in payment of necessary plantation supplies to enable her to
cultivate her separate plantation; that the same were furnished and
delivered to her by certain commission merchants; and that the
notes were given for the payment of such plantation and family
supplies and necessaries for family use as a married woman is
allowed by law to purchase on credit and to bind her separate
estate therefor.
Leave to amend the declaration and replications was subsequently
granted to the plaintiff, and it appears that amended
Page 101 U. S. 242
counts were filed in pursuance of the authority granted; but it
is not necessary to reproduce the new pleadings, as they do not
vary the material issues between the parties. Continuance followed,
when the parties entered into a stipulation to waive a jury, and
that the matters of fact, as well as of law, should be tried by the
court. Hearing was had, and the findings of the circuit court are
as follows: 1. That the husband was discharged before the
commencement of the suit from all liability upon the notes, as
alleged in his plea. 2. That said Virginia was a married woman at
the time she executed the notes, and the wife of the other
defendant, as averred in defense. 3. That the notes were executed
not to secure any existing indebtedness, but as a security for such
advances in money and supplies as the parties to whom the notes
were delivered might thereafter make upon the order of the husband,
for plantation purposes. 4. That the parties to whom the notes were
delivered did thereafter make large advances to the husband, in
money and supplies, that remain unpaid, of which an amount as large
in value as the aggregate of the three notes was forwarded to the
parties and used in the cultivation of two plantations owned by the
wife and her two children by a former marriage; that the husband
was cultivating those two plantations during the year in question,
on his own account and in his own name, under a verbal contract of
lease made by him with his wife for a stipulated money rent. 5. No
proof was exhibited that the parties to whom the notes were
delivered or the plaintiff knew whether the wife was or was not
interested in such plantation enterprise; but the court finds that
they did know of her interest in the property of the plantations,
and that the whole of the account was kept in the name of one of
the plantations, and that it contained many items for supplies
furnished for another plantation in the cultivation of which the
husband was interested, and other items having no relation to
plantation matters. 6. That a deed of trust of one of the
plantations was executed by the husband and wife contemporaneously
with the making of the notes to secure the payment of the same, in
which it is recited that it is made to secure the indebtedness of
the wife. Based on these findings, the circuit court rendered
judgment for the defendants, and
Page 101 U. S. 243
the plaintiff excepted, and sued out the present writ of error.
All the facts are found by the court, and the only error assigned
is that the court misapplied the law to the facts.
Marriage, by the rules of the common law, gave the husband a
freehold tenure in the estates of inheritance in land of the wife,
and the right to the rents and profits during their joint lives.
During coverture, the husband must sue in his own name for any
injury to the profits of the land, but for an injury to the
inheritance it was required that the wife must join in the action.
2 Kent, Com. (12th ed.) 131.
Money, goods, and personal chattels in possession vested
absolutely in the husband, and became his property as completely as
property purchased with his own money; and such property never went
back to the wife unless given to her by the husband in his lifetime
or by his will, and in case of his death it vested in his
executors. Choses in action did not vest absolutely in the husband,
but he acquired the power to sue for and recover or release or
assign the same, and when recovered and reduced to possession, and
not otherwise, the money in most cases became absolutely his
own.
Husband and wife during coverture were regarded as one person at
common law in most respects, from which it followed as a general
rule that the wife could neither sue nor be sued without joining
her husband. Great changes in the rules of the common law in that
regard were made, even before the colonies separated from the
parent country. Deeds of indenture in transferring the real
property of the wife, with the consent of the husband, were
substituted in the place of fine and recovery; and when it became
settled that the wife might hold a separate estate, many other
exceptions to the rule that she could neither sue nor be sued
without joining the husband were sanctioned by judicial
authority.
Exceptions almost without number have been admitted by the
courts, and many more have been added to the catalogue by
legislation, until in some jurisdictions it is difficult to say
that there is any thing left of the ancient rule. Questions of the
kind in the state of Mississippi depend almost entirely upon
statute regulations and the decisions of the state courts in
construing those provisions.
Page 101 U. S. 244
Contracts made by the wife at the period mentioned in the
declaration, or by the husband with her consent, for family
supplies or necessaries, including wearing apparel of herself and
of her children, or for their education, or for buildings on her
land or premises and the materials therefor, or for work and labor
done for the use, benefit, or improvement of her separate estate,
were by statute declared to be binding on her, and that
satisfaction might be had for the same out of her separate
property. Code 1857, sec. 25, p. 336.
Supplies for the comfort, convenience, and maintenance of the
family and the education of her children must be contracted for by
the wife, and, if not purchased directly by her but by the husband,
they imposed no liability on her separate property, unless the
husband had her consent to act. Unlike that, the rule is that
supplies for her plantation, or for the repairs or improvement of
her separate estate, or for work, labor, and services in
cultivating the same, the contracts may be made by husband and
wife, or either of them.
Clopton v. Matheny, 48 Miss. 286,
295.
Orders for supplies to her plantation, if filled, bind the
separate property of the wife, whether bought by herself or her
husband with or without her consent, the rule being in that state
that the husband is for that purpose the agent of the wife
in
invitum, and that he is made so by legislative enactment. Code
1871, sec. 1780;
id. 1857, 336. Her separate estate is
bound for such supplies, even when purchased by the husband without
her direction.
Cook v. Ligon, 54 Miss. 368, 373.
Nothing, say the court in that case, will discharge her estate
save an express contract that it shall be released, or something
equivalent to it. Neither the acceptance of the note of the husband
nor the recovery of the judgment on such note will have that
effect. Plantation supplies may include money advanced for the
purpose of purchasing the same -- farming utensils, working stock,
or other things necessary for the cultivation of a farm or
plantation, which latter designation must depend upon the usage and
custom of agricultural pursuits.
Herman & Co. v.
Perkins, 52
id. 813.
Express statutory provision exists in the state that a married
woman may rent her lands or make any contract for the use
Page 101 U. S. 245
thereof, and may loan money in her own name, take securities
therefor, and employ it in trade or business; and it is equally
clear that she may rent her separate estate to her husband as well
as to strangers.
Robinson & Stevens v. Powell,
Sup.Court Miss., not reported.
Beyond doubt, the two plantations belonged to the wife and her
two children by a former marriage, but it is equally certain that
the husband cultivated the same, during the year in question, on
his own account and in his own name, under a verbal contract of
lease made by him with his wife for a stipulated money rent.
Supplies for the plantation of the wife, whether purchased by her
or by the husband, bind her separate estate; and if she had
cultivated these two plantations during the year referred to, the
plaintiff would be correct, but the finding of the circuit court
shows conclusively that she did not cultivate either of them during
that year. Her authority to lease the premises is not denied, and
the finding of the court establishes the fact that she did not
cultivate either plantation during the period when these supplies
were furnished.
Leased premises cultivated by the husband in his own name and
for his own benefit are not plantations of the wife, within the
meaning of the section of the statute which enacts that all
contracts made by the husband and wife, or by either of them, may
be enforced and satisfaction had out of her separate estate. Code
1871, sec. 1780; Code 1857, p. 336.
Nor is the contract in this case one made by the husband with
the consent of the wife, which may also be satisfied out of her
separate property. Nothing of the kind is pretended, and if it
were, it could not be supported for a moment, as the findings of
the court do not contain any thing to give such a proposition the
least countenance whatever.
Suppose the plantations were leased to the husband and were
cultivated by him that season in his own name and for his own
benefit, still it is suggested by the plaintiff that neither the
party to whom the notes were delivered nor themselves had any
knowledge of the lease, or that the husband purchased the supplies
without the consent of the wife or authority of law. Even if that
be conceded, it will not benefit the plaintiff, as it only shows
that it acted improvidently and without due caution, the
Page 101 U. S. 246
settled decision of the courts of the state being that the
provision that makes the husband the agent of the wife to purchase
plantation supplies for her plantation applies only to those
plantations which are cultivated for the wife's account and
benefit, and not to those she has leased and which are in the
possession and under the control of the tenant.
Grubbs v.
Collins, 54 Miss. 485, 489.
Enough appears in the findings of the court to show that the
plantations were in the exclusive control of the husband, and that
the supplies were procured for the use of his employees, and that
they were not plantation supplies for account or benefit of the
wife. Neither the words of the statute nor the decisions of the
state courts permit such a contract to be enforced against the
separate property of the married woman. In order that the contract
may bind the separate property of the wife, she must be the
beneficiary of the cultivation, and the supplies must in fact have
been purchased for her account and benefit. Her plantation, says
Simrall, C.J., is the predicate of her power to make the contract,
and, he adds, that a false representation that she has such
property will not estop her from averring that the fact is
otherwise.
Nor does the statute oblige her to pay for property purchased on
credit, the rule being that such an obligation cannot be enforced.
Contracts made in the purchase of supplies for the cultivation of
her own plantation, where the cultivation is on her own account and
for her own benefit, may be enforced against her separate property.
Previously, says the Chief Justice, the word was used by the
lawmaker to include all those things required and used by the
planter in the production and preparation of the crops for
consumption and sale.
If it be said that the family must be supported, and that the
term ought to embrace food and raiment for them, the answer to the
suggestion is furnished by a subsequent part of the same section,
which provides that supplies, necessaries, and conveniences for the
family are not necessarily chargeable on the wife's property. She
is not liable for such expenses, unless she bargains to be, or
unless the husband, with her consent, buys them on her account.
Wright v. Walton, Sup.Court, Miss., not yet reported.
Verbal contracts of lease, not exceeding the
Page 101 U. S. 247
term of one year, are valid by the laws of the state. Code 1871,
sec. 2892.
Much discussion of the question of estoppel is unnecessary, as
it is clear that a married woman cannot, by her own act, enlarge
her capacity to convey or bind her separate estate.
Palmer v.
Cross, 1 Smed. & M. (Miss.) 46.
Facts recited in an instrument may be controverted by the other
party in an action not founded on the same instrument, but wholly
collateral to it. Recitals of the kind may be evidence for the
party instituting the suit, but they are not conclusive.
Carpenter v. Buller, 8 Mee. & W. 209, 213; Herman,
Estoppel, sec. 238;
Lowell v. Daniels, 2 Gray (Mass.) 161,
169;
Champlain v. Valentine, 19 Barb. (N.Y.) 485, 488.
In order to work an estoppel, the parties to a deed must be
sui juris competent to make it effectual as a contract.
Hence a married woman is not estopped by her covenants. Plainly the
wife was not competent to purchase supplies for the plantation of
the husband, and therefore cannot be estopped by these recitals.
Bigelow, Estoppel 276;
Jackson v. Vanderheyden, 17 Johns.
(N.Y.) 167.
Viewed in the light of these suggestions, it is clear that there
is no error in the record. Tyler, Inf. and Cov. 726.
Judgment affirmed.