The doctrines of courts of equity, as to the power of femes covert over their separate estates, are not recognized as rules, by which the powers of femes covert, over their separate estates, under our statute, and their consequent liabilities, are to be determined. The statute has prescribed a special mode for the conveyance or transfer of the property, and unless this mode be pursued, the wife has no power to charge her separate estate, except for necessaries for herself and family, and for expenses incurred for the benefit of her separate property; a note given for these, alone or jointly with the husband, would create a legal liability, which can be enforced against either the common property, or separate property of the wife, at the discretion of the plaintiff: Acts of 1848, p. 77. But the principal question in the case is as to the validity of the mortgage. Before examining the point, whether a mortgage executed as was this, with all the solemnities of the law, is valid, I will take a cursory survey of the power of femes covert to affect, by mortgage, their separate equitable estates. Their power to do so is quite clear. They can incumber them, by mortgage, for the payment of their husband's debts. They could give the estates to their husbands; and a mortgage, or other charge upon them, is regarded, pro tanto, as an appointment of the separate estate: Vanderheyden v. Mallory, 1 N. Y. 462; Jaques v. Trustees, 17 Johns. 549 [8 Am. Dec. 447]; 2 Story's Eq. Jur., secs. 1390, 1392, 1395, 1399; 2 Roper, 216, 217. These dispositions of the wife's equitable estate, in favor of the husband, will be closely scrutinized; and they must be free from symptoms of fraud, coercion, or undue influence: 2 Story's Eq. Jur., sec. 1395; Bradish v. Gibbs, 3 Johns. Ch. 550; 2 Roper's H. & W., 216, 224; Milnes v. Busk, 2 Ves. jun. 498, 500. Waiving the examination of the doctrines of courts of equity, in England, as to the power of femes covert over their separate estates, I will proceed with the investigation of their powers as regulated by statute. The property in this case was, most probably, limited by deed; and a special mode of disposing of, or charging, the estate, may have been directed; but, as the deed was not admitted in evidence, its provisions can not be inquired into; and the question must be determined as if it had arisen upon the separate estate of the wife, under the law, and its mode of transfer, as established by the acts regulating the subject-matter. At the date of the execution of the mortgage, the statute of 1841, prescribing the mode of disposition of the property of the wife, was in force. It declared, in effect, that when a husband and wife have conveyed any estate, or interest, in any land, slaves, or other effects, the separate property of the wife, if she appear before any judge of the district court or chief justice of the county court, and declare that she did freely and willingly seal and deliver the said writing, to be shown and explained to her, and wishes not to retract it, and shall acknowledge the said writing, so again shown to her, to be her act, and such privy examination, acknowledgment, and declaration being certified by the officer, the conveyance shall pass all the right, title, and interest which the husband and wife, or either of them, have in or to the property thereby conveyed. The forms prescribed by the statute have been strictly pursued in the execution of this mortgage; and its validity would seem to be beyond dispute, provided the wife has competent authority to convey a less interest, or to incumber her estate, by complying, in the mode of making the charge, with the formalities prescribed for the conveyance of her entire estate. This can not be doubted, on principle; and it seems to be equally well settled, by the authorities. By the rules of the common law, and independent of the wife's rights in equity, her personal property vested in the husband, and he was seised of a freehold interest in her estate of inheritance in land, and entitled to its rents and profits during their joint lives; but if he died before the wife, she took the estate, again, in her own right: 2 Kent's Com. 130. She could not contract in relation to her personal property, as it had passed to her husband; but, in her realty, she retained a dormant reversionary interest, which, on the death of the husband, revived into the right and title under which she held it before marriage. This interest she could, jointly with her husband, transfer, in England, by way of fine; and a deed, with a privy examination and acknowledgment by the wife, having been substituted for the conveyance by fine, in most of the states of the United States, she can convey such interest by deed, with the requisites of examination and acknowledgment, which are essential to its validity: Id. 151. This has no reference to the disposal of the separate equitable estate of the wife. In the alienation of this, she was not restricted to the conveyance by fine; nor was a private examination required to give validity to her deed: Id.; Sturgis v. Corp, 13 Ves. 190. Under our former laws, the wife could alienate her separate property, with the consent of her husband, and in case of his refusal, or absence, by authorization of the judge. The statute has introduced, in addition to the assent of the husband, the requisite of the privy examination of the wife, and, in fact, the customary mode for the transfer of the freehold and dower interests of the wife, under the strict rules of the common law. As a substitute for the clumsy and expensive conveyance by fine, this mode is simple and convenient, but contrasts unfavorably, in these respects, with the mode prescribed under our former laws, or the assurance by which the separate property of the wife, in equity, may be transferred. A privy examination before a magistrate was designed, and may have some tendency, to protect a feme covert from undue influence, or coercion, by her husband, or others; and its operation, if limited to conveyances of lands and slaves, would not be onerous; but when it is considered that it is required by the statute in all conveyances of any of the effects of the wife, and that it is as essential to give validity to transfers of the most insignificant articles among her movables-her poultry, for instance as to the transfer of lands and slaves, it can not be denied, that such regulations are repugnant to the spirit of laws which recognize the capacity of the wife to hold all her separate property in her separate right, based as they are on the fundamental principle, that her separate existence and independent volition are not absorbed, at least entirely, by the coverture, in those of the husband. The bonds which the iron principle of the common law had thrown over the rights and powers of the wife, had been so far broken by courts of equity, as to afford her a reasonable degree of freedom in the disposal of her separate property. In fact, the common law knew nothing of the separate estate of the wife. It owes its foundation in states governed by the common law, and the rules for its control and disposal, to the principles of equity jurisprudence. In this state it is now, and always has been, established by law; and it would seem, if the mode for regulating its transfers must necessarily be sought in other systems, that the rules of equitable jurisprudence, or those which prevailed under our former laws, should have been consulted, rather than those modes of conveyance which were known to the common law. The terms and conditions and the principles of the law on which they are based, recognize to but a very limited extent the separate existence, civil capacity, or independent will of the wife. We may remark, however, that the restrictions upon the wife's power of disposal of her separate property to a particular mode, have been so far removed as to authorize her separate estate to be charged with necessaries for herself and family, and expenses incurred for the benefit of her separate property. But to recur to the inquiry whether the wife can, by complying with the formalities prescribed for the conveyance of her entire interest, execute a valid mortgage of her separate property, for her husband's debts. It is held by the authorities, to be beyond question, that if a wife join her husband in a mortgage of her lands and levy a fine thereof, this will bind her and her heirs, notwithstanding her coverture; for, as by such a process she may make an absolute sale of the estate, so she may make a conditional one thereof: Powell on Mort. 706; 1 Roper's H. & W. 139. Chancellor Kent, in Demarest v. Wynkoop, 3 Johns. Ch. 144 [8 Am. Dec. 467], and in his Commentaries, vol. 2, p. 166, states the proposition as beyond doubt, that a wife may sell, or mortgage, her separate property, for the payment of her husband's debts; that she can deal with her land, by fine, as if she were a feme sole; and what she can do by fine in England, she may do here, by any legal form of conveyance, provided she execute under a due examination: Wotton v. Hele, 2 Saund. 177; James v. Lyon, 3 Yeates, 471; Jamison v. Jamison, 3 Whart. 457 [31 Am. Dec. 536]. The wife, in the case before the court, on her privy examination, acknowledged, after due examination of the contents of the mortgage, that the same was her act and deed, that she had freely and willingly executed the same, and wished not to retract. This was duly certified by the public officer. The law allows her, after these solemnities, provided as a safeguard, to pass her whole estate for the payment of her husband's debts; and her competence, under the same sanctions, to pass a less interest, or to incumber her estate, can not be questioned. It will not be necessary, in this case, to examine the doctrine as to the wife's right of exoneration out of the estate of her husband, and to have a mortgage of her property, given to secure the payment of his debts, satisfied out of his assets, in case of his death. The general rule is, that where a wife joins her husband in a mortgage of her estate, for the benefit of the husband, as between the husband and wife, the mortgage will be considered the debt of the husband; and after his death, the wife, or her representatives, will be entitled to stand in the place of the mortgagee, and have the mortgage satisfied out of his assets: 3 Kent's Com. 167; Powell on Mort. 725, 726; Id. 875-877; Clinton v. Hooper, 1 Ves. jun. 186; 1 Roper's H. & W. There is no allegation that the husband has any separate, or that there is any community property; if there were, and the debt was, in fact, contracted for the husband's benefit, the court would doubtless have competent authority to decree payment out of such property, if sufficient, and if not, the balance to be satisfied out of the separate property of the wife, incumbered with the charge. As stated in the previous part of the opinion, there is no doubt that courts of equity will examine transactions of this character, with vigilance, and protect the wife from undue influence, or the fraud or compulsion of her husband and others. There is no pretense that in this case there was any fraud, or coercion, exercised over the wife. Where such defenses are insisted upon, to repel the legal effects of the wife's execution. of an instrument, under all the formalities of the law, they must be averred by the wife and sustained by proof; as it is not incumbent on the plaintiffs to establish a negative: Field v. Sowle, 4 Russ. 112. The counsel, in their elaborate arguments, have examined, to a considerable extent, the doctrines prevailing under our former system of jurisprudence, as to the disability of the wife to bind herself as security for the husband, or to mortgage her property for the payment of his debts. There is no doubt, that under the sixty-first law of Toro, the wife could not bind herself as security for her husband, although it be alleged that the debt was converted to her benefit; and that when the husband and wife bound themselves, jointly, in one contract, the wife was not liable in anything, unless it be proved that the debt was converted to her benefit, and then she shall be bound in proportion to what shall have been so applied: Nov. Rec., lib. 10, law 1, tit. 3. Her privilege under this law, could be renounced; and in that event, to render her liable, it was not necessary that the debt inured to her benefit: Banks v. Trudeau, 2 Mart. N. S. (La.) 40; Bein v. Heath, 6 How. 228. Her disability to become security is also subject to certain exceptions: Diccionario de Legislacion, verbo, Muger. It appears that under our former laws, she could have validly incumbered her separate estate, by renouncing the immunities. guaranteed to her by law; and an awkward attempt at such waiver appears to have been made in the execution of the instrument. The doctrines of that system of laws are, however, not applicable to the case; and their investigation need not be pursued. We are of opinion that there is no error in the judgment of the court; and it is ordered that the same be affirmed. Judgment affirmed. |