Warwick v. Lawrence

The opinion of the court was delivered by Beasley, C. J.

Anna Lawrence, the respondent, in her bill exhibited in the •court below, alleged that, one Emson being largely in her debt, *182 she employed William Warwick, the appellant, as her agent: to collect the moneys so due, and that in pursuance of such authority he received the sum of $952.30, which it was agreed he should hold in his hands until the determination of a suit then pending. The bill further alleged that the suit so referred to was decided in her favor, and that thereby she became entitled to the moneys in question. The answer of Warwick admits the-receipt of the sum above mentioned, and, by way of defence, sets up that the complainant and her husband, at the time he, Warwick, undertook said agency, agreed in writing that he “should take out of and retain from the first moneys that he should receive for them a sufficient amount to pay and satisfy him for all moneys loaned or advanced by him, or expended by him for them or either of them.” This agreement was duly proved, and it was also shown that Warwick had advanced or paid for the-complainant and her husband an amount of money in excess, of the sum which had been received by the appellant from the-said Emson, such outlays having been made for the most part for the husband of the complainant.

The vice-chancellor, on the hearing before him, allowed a deduction from the moneys in the hands of Warwick of the. sums paid by him to the complainant, but rejected the payments made by him for her husband, the ground of decision being that the separate estate of the wife could not be charged with the debts of the husband, even though the moneys be advanced upon an express promise in writing to pay out of a particular fund.

In avoidance of the force of the legal rule thus asserted, the counsel of the appellant insists that the evidence shows that the-moneys received by Warwick, as already stated, were not, in-point of fact, the moneys of Mrs. Lawrence, but belonged jointly to her and her husband; but it is obvious that if we assume the existence of such premises, only a half defence would be conceded, for if the wife owned a moiety of the fund, such portion would be protected against her assumptions of the-debts of her husband in the same manner that the whole fund. *183 would have been protected if she had been invested with the exclusive ownership of it.

But we think, looking somewhat deeper into the principle underlying the case, that the complainant is not entitled to recover any part of these moneys. Construing the facts most favorably to the complainant, and regarding the fund in question as her exclusive property, the transaction, in substance and effect, was an application by her of such moneys in satisfaction of the debts of her husband, and there is nothing in the law of this state that forbids a married woman from making such a disposition of her property. The married women’s act authorizes a feme covert to acquire and hold property of all kinds, and invests her completely with the jus disponendi. It is also declared that she shall have the right to bind herself by contract in the same manner and to the same extent as though she were unmarried, such latter power being restricted by the proviso that “nothing in this act contained shall enable such married woman to become an accommodation - endorser, guarantor or surety, nor shall she be liable on any promise to pay the debt, or answer for the default or liability of any other person.”

From this quotation, it is obvious that the agreement of the complainant touching the employment of her moneys in liquidation of the debts of her husband, so long as the same remained executory, could not have been enforced against her either at law or in equity. Such an agreement was a promise to pay the debt of another out of a particular fund, and the statute in express terms withholds from her the power to assume such an obligation. But there is another constituent of this case which appears to have been overlooked by the court below and by the counsel, and that is the fact that when this bill was filed the agreement of the complainant had been for a long time completely executed ; the moneys in question had been collected by Warwick, and by virtue of the agreement of the complainant had been applied in payment of the debts due from her and from her husband, and the question to be decided, therefore, is whether after such complete execution of her contract she can abrogate her consent and reclaim the moneys.

*184 We see nothing in the- statute nor in the general principles of jurisprudence that appears to indicate the existence of a power so unnecessary for the reasonable protection of the_ married woman, and which would be so liable to abuse. A married woman cannot bind herself to pay the debts of another, but she can pass over her money or property for that purpose, and it cannot reasonably be contended that after the doing of that act she can at will avoid it. In the present instance, Mrs. Lawrence, the complainant, could at any time before the receipt of these moneys by Warwick have revoked his authority, on the basis of its not being binding upon her as long as it was executory ; but by permitting it to remain in full force until after the collection had been made and the funds applied to the payment of the debts of her husband, such payments became her payments, and she cannot now repudiate them. The difference between the executory contract of a married woman and one that is executed is illustrated in the case of a bond and mortgage given by her to secure the debt of another person: the contract in the bond, being executory, cannot be enforced against her, but the conveyance by the mortgage being executed, her title can be foreclosed in equity, as has been frequently decided by the courts of this state.

The result, therefore, is that, inasmuch as the moneys in suit were received by Warwick and applied by him with the consent of the complainant to the payment of the debts of her husband, they cannot be reclaimed by the complainant.

The decree must be reversed, and the bill dismissed, with costs in both courts.

It is proper to say that the suit may not be a precedent; that the bill in this case should not have been entertained. The controversy was a purely legal one, and should have been tried in a court of law.

Decree wnanimously reversed.