A., a married woman, offered to pay one-half of her indebtedness
in land in B. County, Mississippi, at $10 per acre, and give her
notes secured by mortgage on her land in C. County, in that state,
for the remainder. A large number of her creditors having accepted
the offer, she conveyed her land to D. in trust, but provided in
the deed that if any of them should fail within ninety days from
its date "to signify in writing their acceptance of the terms of
settlement and payment of their claims or debts," they should "be
considered as refusing the same" and be debarred from the benefits
of the deed. Among
Page 99 U. S. 326
the creditors accepting the offer was E., who surrendered the
notes held by him and took the new ones. After the ninety days had
expired, A. expressed her hope that all her creditors would come
in, and authorized her agent, in case they did, to receive her old
notes and deliver the new ones in exchange therefor. At the time of
said offer, A. represented that the land was encumbered only by a
small annuity, and concealed the fact that a judgment by default
had been obtained in C. County by F. against her and her husband.
On execution sued out on that judgment, G., her son, and said F.
purchased her land in that county. E. thereupon filed his bill to
set the judgment aside,
or to obtain leave to redeem the land.
Held:
1. That E. having acted in pursuance of the original offer of
A., the condition in her deed as to a written acceptance within
ninety days did not apply to him.
2. That the condition being only in the nature of a penalty
against the creditors, not assenting in the prescribed way, could
be and in fact was waived by A.
3. That following the decisions of the Supreme Court of
Mississippi on the code of that state, unless a married woman has a
separate estate there situate, she is, as to her contracts, subject
to the disability of coverture, and that a creditor suing her there
must aver in his bill or declaration that she has such an estate,
and that his debt is a charge upon it, or ought to be paid out of
it.
4. That as the record of the judgment in satisfaction of which
the land was sold does not disclose the fact that A. had such an
estate, and that it was liable for her debts, the judgment was
void.
5. That F. and G. were not innocent purchasers.
MR. JUSTICE FIELD delivered the opinion of the Court.
In July, 1866, the defendant, Sarah D. Partee, wife of William
B. Partee, then a resident of Mississippi, being indebted in the
sum of $125,000, and unable to pay the amount, submitted to her
creditors a proposition in writing for settlement. She represented
that the late war had caused her a loss of over $300,000, leaving
her indebted as mentioned, with no resources except lands, which
would not then sell for half of their value, or for half of her
indebtedness. In order, therefore, to place all her creditors on
the same footing, some of them having brought suits for sums
amounting to about $14,000, she offered to pay one-half of her
indebtedness in lands in Tallahatchie and Sunflower Counties,
Mississippi, at $10 per acre; and, for the remaining half, to give
her notes in equal sums, payable in January, 1867, 1868, 1869,
1870, and 1871, with
Page 99 U. S. 327
interest at eight percent per annum, secured by a mortgage on
the residue of her lands in Yazoo County, then under cultivation.
This proposal was afterwards modified so as to postpone for one
year the maturity of the several notes.
To secure confidence in the papers to be drawn to close the
transaction, she selected gentlemen well known in Yazoo City to see
to a proper execution of a deed of trust and to act as trustees or
to select proper persons for that position. And she stated that
Messrs. Hyams and Jonas, lawyers of high character in New Orleans,
would attend to any of the business which the creditors might
choose to place in their hands and to the distribution of the new
notes after they were executed. Accordingly, in November, 1866, a
deed was executed by Mrs. Partee and her husband to one Robert
Bowman, conveying to him the lands mentioned upon the following
trusts: 1st, to hold the lands in Tallahatchie and Sunflower
Counties for the benefit of such creditors as should accept the
same at $10 an acre in payment of one-half of her indebtedness to
them, or if a majority of the creditors should desire it, to sell
the same and divide the proceeds, or to convey to each of such
creditors his proportion of the lands, and, 2d, in case of default
in the payment at maturity of the notes executed upon the
settlement, to sell the lands lying in Yazoo County, or so much as
might be necessary to pay them, and apply the proceeds to their
payment.
The deed contained a clause providing that if any of the
creditors should fail within ninety days from its date "to signify
in writing their acceptance of the terms of settlement and payment
of their claims or debts," they should "be considered as refusing
the same," and be debarred from the benefits of the deed.
The instrument was properly executed, stamped, and registered.
After its registration, it was delivered with the new notes, signed
by Mrs. Partee and her husband, to Messrs. Hyams and Jonas for the
purpose of carrying out the proposed settlement and securing the
acceptance of its terms. Many of the creditors had previously
assented to its terms, and after the deed was executed, they
surrendered their old notes for the new notes. Other creditors came
in afterwards, and in a similar
Page 99 U. S. 328
way gave up their old notes and took the new paper. It does not
appear, however, that any of them signified in writing their
acceptance of the terms of the settlement within the ninety days
mentioned in the deed.
It appears also that before the deed was executed -- namely, in
April, 1866, one James Stewart had brought suit against Mrs. Partee
and her husband on a promissory note made by her, and in June
following had obtained judgment by default against them for a sum
exceeding $6,000. Upon this judgment execution was issued, and in
January, 1869, the lands in Yazoo County embraced by the trust deed
were sold and purchased by Stewart and a son of Mrs. Partee. When
the settlement was proposed, the existence of this judgment was
concealed from Messrs. Hyams and Jonas, who acted, as already
stated, for Mrs. Partee in securing the assent of creditors. The
representation then made was that the lands were encumbered only by
a small annuity.
The present suit is brought to set aside this judgment of
Stewart, or to obtain leave to redeem the land sold under it; to
remove the trustee, who is charged with certain fraudulent
practices in connection with the trust property, and to have a new
trustee appointed; and to enforce the trusts of the deed. It is
unnecessary for the disposition of the present appeal to state in
detail the various allegations of the bill or of the several
answers of the defendants, as the case appears to have been decided
upon the supposed impediment to the relief prayed by reason of the
provision excluding creditors from the benefits of the deed, who
failed, within ninety days from its date, to indicate in writing
their acceptance of the terms of settlement; and by the sale of the
property in Yazoo County under the judgment of Stewart. Our
consideration is limited, therefore, to the effect of that
provision upon the rights of the complainants, and to the validity
of that judgment.
1. With reference to the provision, it is to be observed that it
was not mentioned in the proposition for settlement made in July,
1866. That prescribed no period within which its terms should be
accepted; and before the execution of the deed, as already stated,
and as recited in it, many of the creditors had assented to them.
To such creditors -- and they embrace the
Page 99 U. S. 329
complainants in this suit -- the provision could not have been
intended to apply. No purpose could have been subserved in
requiring from them any further expression of assent to the
settlement. As to them nothing further was necessary to complete
the transaction than the surrender of the old notes and the
acceptance of the new notes in their place, and this, as stated,
was done.
As to the creditors who had not then acceded to the proposed
settlement, it was important to fix some period within which they
should come in. To quicken their action, the provision was
inserted. Their acceptance in writing was not a condition precedent
to the vesting of the property in the trustee for their benefit,
nor was it a condition upon which the trust was to be executed. It
was at best only a condition subsequent in the nature of a penalty
against creditors not assenting in the prescribed way, and could be
waived by the grantors, and was in fact waived by them. Long after
the lapse of the period prescribed, they expressed to their agents
a hope that all the creditors would come in, and they authorized
them to receive from creditors their old notes and to deliver in
exchange new notes in their place for one-half of their amount; and
when this was done, they permitted the creditors to repose upon the
new security furnished until the statute of Limitations had barred
a right of action upon the old notes, without any suggestion that
the deed was inoperative because of their failure to accept in
writing the terms of the proposed settlement within ninety days.
Their approval of, or at least acquiescence in, the conduct of
their agents estops them in equity from enforcing the provision as
to the acceptance in writing so as to debar from the benefits of
the deed any of the creditors who accepted the settlement by
surrendering the old notes and taking the new ones. A married woman
cannot be permitted, any more than an unmarried one, to retain the
benefits of a transaction which she has solicited and at the same
time to disavow it. She cannot in this case retain the surrendered
notes and repudiate the consideration upon which their surrender
was made. 2 Story, Eq., sec. 1536.
2. As to the Stewart judgment, it is to be observed that the
record shows it was rendered in an ordinary action of assumpsit
Page 99 U. S. 330
upon a promissory note of Mrs. Partee, without mention in the
pleadings of any separate property belonging to her or, indeed, of
her being a married woman. The plaintiff Stewart knew that she was
not a
feme sole, and therefore neither he nor her son, who
were the purchasers under the judgment, can claim any advantage
from the omission. The judgment is simply a personal one; and a
judgment of that character against a married woman is a nullity
under the laws of Mississippi.
At common law, a married woman is incapable, except in a few
special cases, of contracting a personal obligation. Her disability
in this respect, by reason of her coverture, cannot be overcome by
any form of acknowledgement or mode of execution, or by her uniting
with her husband in the contract. The special cases in which the
disability does not exist are those where she is compelled from
necessity to act as a
feme sole, as when her husband is
imprisoned for life or for years, or has fled the country or been
exiled. In such cases, the husband is considered as civilly dead,
and the wife as in a state of widowhood. Her disability also ceases
when she is permitted to act as a sole trader, as in England by the
custom of London, and in this country by special legislation.
Equity, too, will sometimes impose as a charge upon her separate a
debt incurred by her for its benefit, or for her benefit on its
credit; but this is a different matter from a contract by which a
personal obligation is created. Except in the cases mentioned, the
general rule is that she cannot be personally bound; nor can she be
subjected on her contract to a personal judgment. Various reasons
are assigned for this latter exemption, some of which would be
destitute of force under our altered laws. Reeves, in his treatise
on Baron and Feme, says
"that no action at law can be maintained against her, for the
judgment in that case would subject her person to imprisonment, and
thus the husband's right to the person of his wife would be
infringed, which the law will not permit in any case of a civil
concern."
"And for the same reason," he adds, "there can be no personal
decree against her in chancery. It must be one which reaches her
property only." P. 171. This doctrine, whatever reasons may be
assigned for it, has, with few exceptions, been recognized in the
several states, and, in many
Page 99 U. S. 331
instances, personal judgments against married women upon their
contracts, rendered upon defaults or by confession, have been held
void.
Griffith v. Clark, 18 Ind. 457;
Morse v.
Toppan, 3 Gray (Mass.) 411;
Dorrance v. Scott and
Wife, 3 Whart. 309.
See also Wallace v. Rippon and
Wife, 2 Bay (S.C.) 112, and
Norton v. Meader, 4
Sawyer 620, 624.
The doctrine of the common law has, however, been greatly
modified in most of the states by legislation, and the extent to
which a married woman may contract, and the manner in which her
contracts shall be authenticated and enforced, are definitely
prescribed. In Mississippi, such modification has been made. The
Code of 1857 enacted that the property owned by a woman at the time
of her marriage, or which shall subsequently some to her, shall be
her separate property, and not be subject to the debts of her
husband, but shall be liable for her own debts contracted before
marriage. At the same time, it authorized a married woman, either
by herself or conjointly with her husband, to contract with
reference to her separate property for its lease, use, and
improvement, and the construction of buildings upon it; also, for
the support of herself and children, and for many other things, and
provided that such contracts shall be binding on her, and that
satisfaction for them may be had out of her separate property. It
also declared that, in addition to the remedies then existing by
the common law by and against married women,
"the husband and wife may sue jointly, or if the husband will
not join her, she may sue alone for the recovery of her property or
rights, and she may be sued jointly with her husband on all
contracts or other matters for which her individual property is
liable; and if the same be against husband and wife, no judgment
shall be rendered against her unless the liability of her separate
property be first established."
Code of 1857, p. 335.
In several cases which have arisen under these provisions, it
has been held by the Supreme Court of Mississippi that unless a
married woman has a separate estate she is subject, as to her
contracts, to the disability of coverture, and that a creditor
suing her must, in his bill in equity or declaration at law, aver
that she has such an estate, and that the debt is a charge upon it
or ought to be paid out of it. It was so held in
Choppin
Page 99 U. S. 332
v. Harmon, decided in 1872, when the court added that
every suit in the state, whether in law or in equity, founded upon
her contracts, "takes the shape and direction of reaching a
specific fund." 46 Miss. 307. And in
Bank of Louisiana v.
Williams and Wife, 46 id. 629, decided in the same year, the
court said, speaking of a suit against a married woman,
"The condition precedent to a right of recovery, either at law
or in equity, is that there be a separate estate out of which
satisfaction may be had. Our jurisprudence does not realize the
possibility of a personal judgment against a married woman."
In
Casey v. Dixon, 51
id. 593, decided in
1875, a personal judgment was rendered against a married woman and
her husband, and her land sold under execution issued upon the
judgment. The purchaser at the sale brought ejectment for the
premises. It was held that the judgment was void and the sale under
it invalid; the court saying, citing language used in a previous
case not then reported, that in order to authorize a judgment
against a married woman, her liability must be shown by averment
and established by evidence; that a married woman is incapable of
being bound either by contract or judgment, except in the special
cases authorized by law; and that by the code of the state, if the
suit is against her and her husband, no judgment can be rendered
against her, "unless the liability of her separate property be
first established."
In
Mallet v. Parham, 52
id. 921, also decided
in 1875, the court, speaking of the power of a married woman to
contract for supplies for her plantation, said:
"It is only inconsequence of the existence of her separate
estate that the statute authorizes her to make the contract, and
that the separate estate alone is bound by the contract. The
enforcement of the contract is in the nature of a proceeding
in
rem. No general judgment can be rendered against her so as to
reach on execution any other property."
There are other adjudications of the Supreme Court of
Mississippi to the same purport. Those cited are sufficient to
establish the invalidity of the Stewart judgment. The allegation
essential under those decisions in every suit against a married
woman, that she has separate property which is liable for the debts
alleged, is wanting in its record. That discloses
Page 99 U. S. 333
no ground of action upon which a personal judgment can be
rendered against her under the law of the state. The coverture of
Mrs. Partee at the time the judgment was rendered is averred in the
bill and is admitted. That fact going to the jurisdiction of the
court could be shown by competent proof. There was no question of
innocent purchasers without notice in the case, the judgment
creditor and the son of Mrs. Partee being the purchasers.
The decree of the court below must be reversed, and the cause
remanded for further proceedings, and it is
So ordered.
MR. JUSTICE MILLER dissenting.
I dissent from the judgment of the Court in this case, and
especially from that part of the opinion which holds that the
judgment against Mrs. Partee and her husband, under which the land
in question was sold, was absolutely void.
It is to be remembered that the question is not whether such a
judgment would be held erroneous on an appeal from that judgment,
but whether it can be held absolutely void when assailed
collaterally in another action, where it is relied upon as the
foundation of a title based on a sale under execution issued on the
judgment.
Mrs. Partee was sued jointly with her husband. Both by the
common law and by the law of all the states, a married woman could
sue or be sued by joining her husband with her. The statutes of
Mississippi, where this judgment was rendered, largely increased
the liability of married women to be sued beyond what it was at
common law. It made her liable, out of her separate estate, for
supplies to the farm owned or cultivated by her, for any debt
contracted with reference to her own property, whether the contract
was made with the consent of her husband or not. In the case in
which the judgment is held void, she signed a joint note with her
husband, her name being signed before his, and she was sued with
him on that note, and personally served with process. She has never
denied the validity of that judgment, or sought to set it aside or
vacate its force. Other persons, not parties to that suit, now come
into court and say that all that was done was void because it
Page 99 U. S. 334
does not appear affirmatively, by the record, that the note on
which the suit was brought was a contract concerning her private
property. That was a matter which, if it were true, should have
been pleaded as a defense. She was subject personally to the
jurisdiction of the court. Her contracts were subjects of which the
court had jurisdiction. It had jurisdiction to enforce those
contracts by sale of her individual property. The note on which she
was sued had every indication that it was her individual contract,
as it no doubt was, and that her husband's name was placed there to
show his consent.
To hold that persons not interested in that contract, nor
parties to the suit, can now come in and treat the judgment as
absolutely void, on its face, is such a departure from all the
principles on which the jurisdiction of the court is determined,
that even the authority of the courts of Mississippi should not, in
my opinion, control us in the matter.