APPEAL FROM Statement of the Case. ANKENEY v. HANNON. THE CIRCUIT COURT OF THE UNITED STATES FOR No. 91. Argued and submitted December 12, 1892. Decided January 3, 1893. In Ohio the separate property of a married woman is not charged, either in law or in equity, by her contracts executed previous to its existence. The cases in Ohio, in New York, and in England on this subject, examined. THIS was a suit in equity to charge the separate estate of a married woman with the payment of certain notes of which her husband was one of the makers, such estate having been acquired subsequently to their execution. It arose out of the following facts: On the 25th of March, 1880, Joseph E. Hannon, Clara M. Hannon, and William H. Hannon executed their three promissory notes, aggregating $14,969.31, dated at Xenia, Ohio, and payable to the order of Joseph E. Hannon, one of the makers. They were subsequently transferred to the complainants before maturity for a valuable consideration. Clara M. Hannon is the wife of Joseph E. Hannon, and at the time the notes were signed she possessed a small separate estate; and in each of the notes she inserted the following provision: "Mrs. Clara M. Hannon signs this note with the intention of charging her separate estate both real and personal." As appears from the statement of counsel, a general demurrer was filed to the original bill, and in disposing of it the court expressed an opinion that the complainants could charge the separate estate in existence when the notes were given, but intimated that the after-acquired property could not be thus charged. The separate estate existing at the time of the execution of the notes was of small value, and the complainants desired to present the question of the liability of the afteracquired estate of the wife for the payment of the notes. They, therefore, amended their bill so as to show that Mrs. Hannon was not, at its filing, or thereafter, possessed of any Argument for Appellants. of the property which she owned at the time of the execution of the notes, but that she had subsequently acquired by inheritance from the estate of her father, who died in 1882, property of the value of more than two hundred thousand dollars. The amended bill also alleged that Clara M. Hannon signed the notes with the intention to bind her separate estate, whether then in possession or thereafter acquired. To the bill as thus amended a general demurrer was also filed and sustained by the court, and a decree entered that the bill be dismissed. From this decree the appeal was taken. The case thus presented the single question, whether the separate estate of the wife, Mrs. Clara M. Hannon, acquired by her by inheritance from her father, in 1882, was chargeable with the payment of the notes described, executed and delivered by her and others in March, 1880. Mr. A. B. Cummins for appellants, submitted on his brief. I. The appeal presents a single question of law. It will be conceded that, under the laws of Ohio as construed by its Supreme Court, when a married woman signs a note containing the provision already quoted, whether as principal debtor or as surety, she charges her separate property with its payment. The sole inquiry arising upon this record is: Under the laws of Ohio existing in 1880, had a married woman the power to make the payment of a debt a charge upon a separate estate acquired after the creation of the indebtedness? II. The legislation of Ohio respecting married women, their separate estate, their power to enter into contracts, and the remedies to be employed in enforcing their obligations, as it existed in 1880, will be found in sections 3108, 3109, 4496 and 5319 of the code as it then was. [These sections will be found in the opinion of the court, infra.] III. As to the effect of these statutes upon the obligation. of a married woman, with respect to her separate property, and upon the procedure to enforce the obligation it is sufficient now to state (1) that in the absence of legislation the estate is created by contract, conveyance or devise, and is Argument for Appellants. therefore always conditioned by the terms of the instrument under which it arises; (2) that whatever remedy is sought against it is administered by a court of equity; (3) that all contracts of married women are, at law, nullities. As we view it, these sections of the code effect three changes. (1) The separate estate is created by law, not by individual act, and is held by legal, not equitable title. All the property, real or personal, owned at marriage or thereafter acquired, by conveyance, gift, devise, inheritance, purchase or labor, becomes at once separate estate, without limitation or restriction. (2) A limited power to make contracts is conferred. It will be observed that the enumeration of the instances in which the married woman is given the right to bind herself personally is an enlargement of her contractual power, and not a limitation upon her right to deal with her separate estate. Levi v. Earl, 30 Ohio St. 147. (3) All that a woman has at marriage, or acquires thereafter, is her separate property. She may make certain valid personal contracts (not material here) upon which she stands before the law precisely as a feme sole. She may charge her separate property with the payment of a debt, and the charge is made effective by ordinary proceedings at law, terminating in a general execution, leviable upon all her separate property. IV. We do not question the rule that the practice of the courts of the United States in chancery cannot be changed by state legislation. We, however, affirm that rights, privileges and obligations may be created or imposed by the States which will be recognized and enforced through the appropriate procedure in the courts of the United States. Bank of Hamilton v. Dudley, 2 Pet. 492; Clark v. Smith, 13 Pet. 195; Ex parte McNiel, 13 Wall. 236; Case of Broderick's Will, 21 Wall. 503, 520; Holland v. Challen, 110 U. S. 15; Reynolds v. Crawfordsville Bank, 112 U. S. 405. And we maintain that, from the propositions above laid down it follows: (1) That whatever may have been the rule in equity, under the legislation of Ohio, we are entitled to reach all the separate property Mrs. Hannon may have at the time the decree is entered, Patrick v. Littell, 36 Ohio St. 79; and (2) that Argument for Appellants. assuming that the statutes of Ohio have modified the doctrine. of the courts of chancery no further than to create and define the separate estate, an intent to charge property thereafter acquired is as effective as an intent to charge existing property. Under the common law, prior to the expansion of the court of chancery, separate property of women, during coverture, was unknown. The law did not recognize any dominion whatsoever in property on the part of married women. The obvious injustice of the results of this doctrine at length secured a remedy, not in the common law nor from the legislative branch of the government, but from the courts of equity. To accomplish the reform, the chancellors invoked the well known principles of trust, and held that, through the intervention of a trustee, property might be held to the sole and separate use of the wife as a cestui que trust. It will be observed that this trust estate was one necessarily created by contract or devise, as distinguished from mere operation of the law, and the courts of equity did no more than give effect to the expressed desire of the parties. When such separate estate was thus brought into existence the power of the wife over it was, with a few exceptions not important here, as absolute and extensive as though she were an unmarried woman. She might sell, or mortgage, or otherwise incumber it, subject always of course, to such restraint upon her power as was enjoined in the instrument creating the estate. The recognition of the separate estate necessarily involved the recognition of a contractual power on the part of a married woman. The separate estate was created that the married woman might enjoy its fruits. This was impossible, unless she were given the right to deal with it, to use it, to sell and incumber it. To these things contracts were necessary; and it was equally necessary that she should be bound by agreements concerning the property with which she had a right to deal. Courts of equity, for the purpose of effecting the object. of the separate estate, enforced her contracts relating to that separate estate unless they were forbidden by the instrument. creating it. Speedily there arose other questions. It is sufficient to say that the cases exhibit the same variety of opinion Argument for Appellants. observable during the growth of any new doctrine. The principal questions in dispute have been, first, the theory upon which the estate is to be charged; second, how the intent to charge it must be evidenced; and third, the construction and effect of the instrument creating it. See Bank of Australia v. Lemprière, L. R. 4 P. C. 572; Johnson v. Gallagher, 3 De G. F. & J. 494, 519; Hulme v. Tenant, 1 Bro. Ch. 16; Owens v. Dickenson, Cr. & Ph. 48; Murray v. Barlee, 3 Myln. & K. 209; Yale v. Dederer, 22 N. Y. 450; S. C. 78 Am. Dec. 216; Todd v. Lee, 15 Wisconsin, 365; Maxon v. Scott, 55 N. Y. 247. Whatever divergence from the line of English opinions may exist in America, it is to be noted that it relates, not to the general doctrine, viz.: that the intention to charge the separate estate is the foundation of enforcing the obligation, but to the character or form of contract which does thus evidence an intent to create a charge. The question has been met in all its phases by the Supreme Court of Ohio, and the rule of that State has long been, that general engagements furnish sufficient evidence of an intent to charge, and that the obligation of a surety does not differ in this respect from promises made for her own advantage, provided (as claimed by some of the cases) an intent to charge be affirmatively shown. Avery v. Vansickle, 35 Ohio St. 270; Williams v. Urmston, 35 Ohio St. 296; Rice v. Railroad Co., 32 Ohio St. 380; Levi v. Earl, 30 Ohio St. 147; Phillips v. Graves, 20 Ohio St. 371; Patrick v. Littell, 36 Ohio St. 79; Fallis v. Keys, 35 Ohio St. 265; Swasey v. Antram, 24 Ohio St. 87; Jenz v. Gugel, 26 Ohio. St. 527; Meiley v. Butler, 26 Ohio St. 535; Westerman v. Westerman, 25 Ohio St. 500. Concerning the construction which shall be given to the instrument creating the separate estate, we do not deem it material to determine which view is supported by the greater authority of reason or adjudication. In Ohio the difficulty has been entirely eliminated by the legislation which makes all the property of a married woman separate estate, and qualifies her to hold the legal title to whatever she may own. Levi v. Earl, 30 Ohio St. 147; Patrick v. Littell, 36 Ohio St. 79. |