Opinion · Supreme Court of North Carolina
Knox v. . Jordan
58 N.C. 175
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1859-12-05
- Topic
- bankruptcy
*176 MaNly, J. The case brings np again the enquiry how far and under what circumstances the separate estate of a married woman is liable for her engagements? This subject has undergone much discussion and has been variously settled elsewhere; but in North Carolina it is still considered an unsettled question in many respects. No case has yet gone to the extent of sanctioning the doctrine, that as to the separate property, the' married woman is regarded as a feme sole in all respects. This seems to be the English doctrine followed in this couiitry by New York, but not by any other State that we are aware of, while Pennsylvania, Virginia, South Carolina, Tennessee, and Mississippi, adopt a different rule.
Citator
UpLaw has not yet analyzed Knox v. . Jordan. The absence of a flag is not a finding that it is good law.
- Cited by
- 7 opinions
KNOXv. JORDAN,58 N.C. 175(1859)
DRAPER, KNOX CO. v. WILLIAM B. JORDAN AND WIFE.
Supreme Court of North Carolina
(December Term, 1859.)
"NEW YORK, 22 September, 1853.
"Six months after date, I promise to pay to the order of Draper, Knox Co. $635.85, at their office, value received.
"WILLIAM B. JORDAN. "MARY J. JORDAN."
It appeared, also, that at the time of the execution of this note defendant Mary J. Jordan was possessed of a considerable estate, which was bequeathed to her by her father to her separate use and benefit, but there was no trustee appointed. There was no averment of a specific charge of this debt by the wife on her separate estate, and in her answer she distinctly avers that such was not her intention, but that she signed the note at the request of her husband, and was at the time assured by him that it did not bind her separate property. The defendant William B. Jordan has since become insolvent, and the bill is filed to subject the wife's separate estate to the satisfaction of the note.
This subject has undergone much discussion and has been variously settled elsewhere, but in North Carolina it is still considered an unsettled question in many respects.
No case has yet gone to the extent of sanctioning the doctrine, that as to the separate property the married woman is regarded as afeme solein all respects. This seems to be the English doctrine followed in this country by New York, but not by any other State that we are aware of, while Pennsylvania, Virginia, South Carolina, Tennessee, and Mississippi adopt a different rule. InFrazier v. Brownlow,38 N.C. 237, it has been decided by this Court that a married woman may, in an obligation which she contracts, specifically charge the same on her separate property where it is done with the concurrence of the trustee. And inHarris v. Harris,42 N.C. 111, it is decided, where slaves are bequeathed to the sole and separate use of a married woman during her life (no trustee being named), and then for the use of two daughters, and then over to their children, that a sale by the woman, in which herPage 148husband, the daughters and their husbands joined, was good. It was not necessary to this latter decision that a different principle should be resorted to than that on whichFrazier v. Brownlowrests. The sale by the parties might have been upheld for the life of the wife as a charge upon the profits only, and in that way the two would have been consistent and stood upon ground which we think more compatible with the objects of such settlements and the rules of the common law. The principle of the case ofFrazier v. Brownlowwe adopt, because we are unwilling to take a step backward and to unsettle a matter which has been considered as settled so long and which has, we doubt not, been frequently followed. But we are at the same time unwilling to depart further from the principles of the common law in relation to the disabilities of married women and run into the labyrinth of difficulties which allows the doctrine whereby they are treated asfemes soles. We prefer (177) adhering as closely as may be, consistently with decided cases, to the rule that a separate estate for the support of a married woman does not confer any faculties upon her except those which are found in the deed of settlement, and that in all other respects she is afeme covertand subject to the usual disabilities.
As we have said, however, we recognize as settled law the principle upon whichFrazier v. Brownlowstands, viz., that a wife may, when not restricted by the deed of settlement, with the concurrence of the trustee, specifically charge her separate estate with her contracts and engagements. She may encumber expressly, but not by implication.
At common law, the legal existence of the wife was for most purposes merged in that of the husband; she could not, except in special cases, contract nor sue or be sued, nor make any contract in respect to her separate estate that would in law bind her. But courts of equity, as a consequence of the principle established by them — that a married woman may take and enjoy property to her separate use — enable her to deal with it in certain respects as afeme sole. She may alien or encumber it in execution of powers conferred on her by the terms of the trust, and if not restricted by the terms may, under the authority ofFrazier v.Brownlow, charge the income or profits with the payment of debts or appropriate them to any selected object, provided such charge or appropriation be specific and unequivocal and concurred in as before stated.
She is not liable by reason of her separate property to her general personal engagements by holding such engagements a charge by implication or by any similar rule of construction.
We are not sure this restricted view of the powers and liabilities of married women will adequately protect them from the peculiar influences which act upon them, but we are quite sure the other, of regardingPage 149them asfemes solein respect to their separate estate, would render such settlements in very many cases futile and vain.
It will be seen from what has been said, that the creditor's bill cannot be sustained. This equity rests upon the ground that the separate estate of the wife is responsible for her personal (178) engagements generally, although not charged with them specifically.
This the Court does not hold.
PER CURIAM. Bill dismissed.Cited: Felton v. Reid,52 N.C. 271;Johnson v. Malcolm,59 N.C. 123;Rogers v. Hinton,62 N.C. 106;Withers v. Sparrow,66 N.C. 138;Harrisv. Jenkins,72 N.C. 185;Pippin v. Wesson,74 N.C. 442;Cooper v.Landis,75 N.C. 533;Hardy v. Holly,84 N.C. 667;Kemp v. Kemp,85 N.C. 497;Flaum v. Wallace,103 N.C. 306;Monroe v. Trenholm,112 N.C. 640;Kirby v. Boyette,118 N.C. 255,260;Sanderlin v. Sanderlin,122 N.C. 3;Vann v. Edwards,135 N.C. 673;Cameron v. Hicks,141 N.C. 24.