CASES IN CHANCERY. MALLORY and others vs. VANDERHEYDEN. The liability of a husband, for the debt of his wife, and to be sued jointly with her in an action at law for the recovery of the same, terminates upon his being discharged under the bankrupt act. And no suit at law can be maintained against the wife during the life of the husband, without joining her husband with her in the same suit. The remedy at law is therefore suspended as to the wife, or her estate, during the coverture. But there is nothing in the English bankrupt act, or in our act of 1841, by which the discharge of the husband is made a discharge of his wife, or a discharge of her separate estate, or of her reversionary interest in her real estate after the death of her husband, from liability for debts contracted by the wife before her marriage. Where the wife survives her husband, who has been discharged under the bank rupt act, actions at law may be maintained against her for her debts, contracted before her marriage; in the same manner as if her husband had not been discharged from his liability. Upon the death of the husband, debts contracted by the wife before the marriage, and which have not been recovered of her and her husband during her coverture, survive against her; and the estate of her husband is not liable therefor. Where the husband survives the wife, although he is no longer liable for debts contracted by her while sole, however much he may have received by the marriage, her separate estate, in the hands of her personal representatives, is liable for those debts. A creditor, whose remedy at law, for the collection of a debt contracted by a married woman previous to her marriage, is suspended during the lifetime of the husband, by his discharge under the bankrupt act, may file a bill in chancery, against the husband and wife, to reach stocks standing in her name, for her sole and separate use, and other property held in the same manner, and which belonged to her before her coverture; and may have such separate property applied to the payment of his debt. Where rights exist, and the remedy at law is inadequate to meet the justice and equity of the case, it is a part of the ordinary jurisdiction of the court of chancery to provide for such a case. Mallory v. Vanderheyden. THIS was an appeal by the defendants from a decretal order of the vice chancellor of the third circuit, overruling the demurrer to the bill of the complainants. The object of the bill was to reach certain stocks standing in the name of Mrs. Vanderheyden, for her sole and separate use, and other property held in the same manner, and which belonged to her before coverture; and to have it applied to the payment of a debt which she owed to the complainants at the time of her marriage; her husband having been discharged from his debts under the bankrupt act. The following opinion was delivered by the vice chancellor : PARKER, V. C. The first inquiry in this case is, whether the facts stated in the bill of complaint and admitted by the demurrer, entitle the complainants to the relief asked for, independent of the question arising from the husband's discharge in bankruptcy, which I shall afterwards consider. It has long been a well settled rule, in equity, that a feme covert, in regard to her separate property, is considered a feme sole, and may by her contracts bind such separate estate, though she is incapable, even in equity, of binding herself personally. (Dowling v. Maguire, Lloyd & Goold's Rep. temp. Plunket, 19. Cater v. Eveleigh, 4 Dessau. Rep. 19. Montgomery v. Eveleigh, 1 McCord's Ch. Rep. 267. 17 John. Rep. 548. 7 Paige, 14, 112.) But there has been much difference of opinion as to the character of the contract necessary to bind her separate property. One of the leading cases on this subject was that of Hulme v. Tenant, (1 Brown's Ch. Rep. 15,) where it was held by Lord Thurlow that a bond of a feme covert, executed jointly with her husband, should bind her separate estate. The correctness of this decision was several times called in question by Lord Eldon, and particularly in Nantes v. Currock, (9 Ves. 181,) and in Jones v. Harris, (Id. 497;) yet it seems fully to be sustained by the later decisions. In Bullpin v. Clark, (17 Ves. 365,) a married woman had borrowed money, and having promised verbally to repay it out of her separate property, she gave her promissory note. The court of chancery decreed pay Mallory v. Vanderheyden. ment of the debt out of the rents and profits of estates settled to her separate use. In the still later case of Murray v. Barlee, (4 Sim. Rep. 82,) the vice chancellor, Sir Launcelot Shadwell, decreed payment of a debt out of the separate property of a feme covert, where no bond or note had been given, but when she had promised by letter to pay the debt; or had said what was considered equivalent to a promise. The same case came before Lord Chancellor Brougham on appeal, and was affirmed by him, in 1834. (3 Mylne & Keene, 209.) The opinion of Chancellor Brougham goes the full length of saying that the wife's separate property is bound, whether the promise is in writing or verbal. It is conceded in all these cases that the bond, note, or promise is void and inoperative at law; but it is held, that in equity it shall be considered an appointment of her sole and separate property. The power of appointment is incident to the right to enjoy her separate property. There must appear to be an intention to change her separate estate; otherwise the debt will not affect it. (2 Story's Eq. 628.) All these decisions proceed upon the ground, that having contracted the debt during coverture, the presumption is that she intended to charge her separate estate. It is said by Judge Story, (2 Story's Eq. 773,) that the decisions have not yet gone the full length of holding that all her general pecuniary engagements shall be paid out of her separate property, without some particular promise or engagement, operating as an appointment; but he admits that the tendency of the more recent decisions is certainly in that direction. (2 Story's Eq. 628. 18 Ves. 255.) But it seems to me the court for the correction of errors in this state, in Gardner v. Gardner, (22 Wend. 528,) have gone that length. Mr. Justice Cowen, in giving the leading opinion in that case, says, I think the better opinion is, that separate debts, contracted by her expressly on her own account, shall in all cases be considered an appointment, or appropriation for the benefit of the creditor, as to so much of her separate estate as is sufficient to pay the debt, if she be not disabled to charge it by the terms of the donation. And I think that such should be the rule, Mallory v. Vanderheyden. and that nothing short of it will fully carry out the acknowledged doctrine, that in regard to her separate property a feme covert is to be considered a feme sole; for the property of a feme sole would be liable to all her general creditors. In addition to the case I have referred to, the courts of this state, in other decisions, have recognized the rule as fully as it has been laid down by the English court of chancery. (7 Paige, 14. 3 John. C. R. 77. 17 John. Rep. 548, 580. Gardner v. Gardner, 7 Paige, 112. Shirly v. Shirly, 9 Id. 363.) In this case, however, it is unnecessary to look for a broader rule; for the intention to charge her separate property appears clearly from the facts set forth. From the admitted allegations in the bill, it is shown that the goods were sold, and the money advanced to the wife, while sole, upon the credit of her individual property; and that it was agreed by her that the debt should be paid by applying it on notes which the complainants owed the estate of her former husband. This was equivalent to a direct and express agreement to pay out of her individual property, and was repeated and assented to at different times, after the marriage, by both defendants; who continued to evince a desire to have such an arrangement made till February, 1843. But it is urged by the defendants' counsel that the debt not having been contracted during coverture, the presumption that she intended to appropriate her sole and separate property does not apply. I think this objection not available; because whatever the presumption might be, this case does not rest on presumption. The intention to pay out of her separate property is made to appear affirmatively, both before and after marriage, by the agreement to which I have already adverted. Nothing on that subject is left to inference or presumption. The case of Briscoe v. Kennedy, decided by the master of the rolls and reported in the note to Hulme v. Tenant, (1 Brown's Ch. Rep. 17,) is in point. There the debt of the wife accrued before coverture; and after marriage the wife conveyed her property for her separate use; upon a bill filed by the creditor against the husband and wife, and after proceeding to outlawry against the Mallory v. Vanderheyden. husband, the court decreed payment of the debt out of the arate estate of the wife. sep The next question to be considered is, whether the demand of the complainants was extinguished by the discharge in bankruptcy of the husband. The only adjudged case bearing on this point is that of Miles v. Williams, (1 Peere Wms. 257.) That was a case in the king's bench. Debt was brought against baron and feme on a bond entered into by the feme dum sola. The defendants pleaded the discharge of the husband in bankruptcy, to which the plaintiff demurred. After several arguments it was held that the discharge was a bar to the action; although judgment was given for the plaintiff on the demurrer, upon the ground that the plea did not conclude to the contrary. The correctness of this decision, in holding a discharge a bar to an action at law against the husband and his wife, has never been doubted. In the case now before me, previously to filing the bill, a suit at law was brought by the complainants against Vanderheyden and wife, to which they pleaded the discharge of the husband; when the complainants, acquiescing in the settled rule at law, discontinued their suit. In Miles v. Williams, Ch. J. Parker remarked, that as to the wife the bankrupt's certificate would be a discharge, at least a temporary one, viz. during the husband's life; but though it was not necessary to give an opinion upon that point, he thought it would amount to a perfect release, and that the wife would be discharged forever. This intimation is merely a dictum of the chief justice, the question being in no way involved in the case then before the court. And unless on examination it appears to be founded in principle, it cannot be regarded as authority. Let us see whether it is not in conflict with the well settled rules controlling the rights which grow out of the relations of husband and wife. The husband is liable for the debts of the wife if contracted during coverture. When the coverture is at an end his liability ceases. In case of her death, he is no longer liable; and in case of his death, the debts survive against the wife, and may be collected of her separate property, if she has any. And although she may have brought |