The first question presented for our consideration is, can the specific relief prayed in the petition be granted ?
Second. Is the petitioner until led to any relief?
It seems to have been a favorite object with the framers of our Constitution to secure to the wife her separate property; and in the 10th section of the General Provisions, they have provided that all “ property, both real and per- “ sonal, of the wife, owned or claimed by her before marriage, and that acquired ■“ afterwards by gift, devise, or descent, shall be her sepárale properly ; and laws “ shall he passed more clearly defining the rights of the wife in relation as well “to her separate property as that held in common with her husband.” The first legislation on this subject, under the, Constitution, will bo found in the act of the first State Legislature, entitled “An act defining the mode of con- “ vcyiug properly in which the wife has an interest.” It provides: “ Where a “husband and his wife have signed and sealed any deed or other writing purporting to be a conveyance of'any estate or interest in land, slave or slaves, or “other effects, the separate property of the wife or of the homestead of the ■“ family, or other property exempted by law from execution, if the wife appear *33“ before any judge of the Supreme or District Court, or notary public, and. “being privily examined by such officer apart from her husband, shall declare “that'she did freely and willingly sign and seal the said writing, to be then “shown and explained to her, and wishes not to retract it, and shall acknowl- “ edge the said deed or writing so again shown to her to be her act, thereupon “said judge or notary shall certify such privy examination,.acknowledgment, “and declaration, under his hand and seal, by certificate annexed to said writ“ing, to the following effect or substance,” &c.
It”is manifest that the contract has not been executed and authenticated in tlie mode required by the act of the Legislature just cited to create any binding obligation on the wife, or to justify this court in divesting her heir of title in his mother’s land. But we are asked to give an equitable construction to the act, and to consider that as done that was intended by the parties to be done in the face of and in contravention of an express statute. We disclaim any right so to contravene and nullify such statute. Up to the last moment, and even when about to acknowledge tlie contract according to the statute, she lias a right to retract and repudiate it. This statute, even when strictly observed, affords'a flimsy protection to the separate property of the wife. Such is the influence the husband acquires over tlie wife, that however worthless and profligate lie may be, he would be able generally to procure her assent to transfer her property with all forms required by the statute; and the proceeds would be spent by him in riot and debauch, if so inclined. It may well be questioned, however, if a transfer with the forms required would pass all her rights in the property so transferred, unsupported by a consideration inuring to her benefit. It seems to me that the spirit of the Constitution, in giving and securing whatever separate property she may own, would be entirely defeated if her property could be conveyed without her receiving the benefit. Such a construction would not be repugnant to nor inconsistent with the provisions of our statute; because, when necessary to bo sold for her benefit, the statute would afford the requisites to be observed in such transfer. I do not wish to be un-clerstood as deciding this last question, as it is not embraced in this case nor necessary to a decision. I have only referred to it, in connection with the point arising on tlie contract sought to be enforced, for the purpose of eliciting investigation on a question believed to be entitled to great consideration.
We will next consider whether the plaintiff is entitled to any relief under his petition. We will lay down three propositions that will have a bearing on the question we are discussing, and they are believed to be incontrovertible:
First. That the separate property of the wife is liable for her debts contracted before coverture.
Second. That the husband is bound to support his wife out of his own property, if able to do so, without resorting to her separate property.
Third. That if the husband is not able to support his wife and her children, her separate property may be resorted to and made liable for that purpose.
For authorities to support these propositions see Florid. R., 93; 2 Paige Ch. R., 13; 4 Desau. R., 20; 1 McCord Ch. R., 369. Under the first proposition it is found from the petition and the evidence that a debt of §20, incurred by the wife before coverture, was paid as a part of the consideration of tlie contract. Consequently that amount could claim satisfaction out of her separate property, if proved to the satisfaction of the court below. Under the second proposition the evidence is far from satisfactory. It is that he was a very poor man. This is too vague and indefinite; tlie wants of poor people are quite limited, and they are'not apt cither to indulge in extravagance or wish to do ?o. The issue Lo be inquired into, from the evidence, is whether he was able to support his wife and children after marriage; and this should be answered in the affirmative or the negative. If answered in the negative, then, under the third proposition, it would follow that the separate property of the wife would be held liable for the necessary support of herself and her child. The testimony as to furnishing these necessary supplies by the proceeds of the contract is as vague and indefinite as to the ability of the husband to support *34her and her children by his own means. The .pelitiou does not disclose the amount oí the consideration for the contract nor the amount applied to the necessities of the wife, nor does it appear from the evidence. This ought certainly to liave been averred and proved. It these facts had been shown, so far as appropriated to tlie previous debts of tlie wife, before coverture, her property would be liable; and so far as appropriated lo her absolute necessities, if the inability of the husband had been found, the separate property would also have been liable to pay. But the testimony was uot certain as to any necessary fact but the $20 for a debt before coverture. Now, if the evidence had been offered to a jury to support the fads essential to a recovery, and they had found a verdict for the defendant, could the verdict be set aside in this court by the observance of anything like uniformity and consistency in our decisions? It has been before said that nothing was proved with anything like certainty to a common intent but the appropriation of the $20; and as the amouut of tlie consideration money was neither averred nor proved, might not the jury have fairly inferred that this sum, being so inadequate for tlie one hundred and sixty acres of land, cast a shadow on the whole transaction, that justified them in discrediting' the evidence and concluding that the contract was without consideration? If we believe that, from the evidence, such would have been the legitimate conclusion of the jury, we cannot say that tlie judgment in the case was contrary to the evidence; because, a jury being waived, tlie judge, was substituted to the same attributes that would have been vested in the. jury. The extent of tlie liability of the husband on liis bond is not adjudicated, because we liave not believed it presented by tlie record. IVbalever rights the plaintiff may have against him can lie fairly adjudicated in a ease where that liability is asserted and sought to be enforced. 'The judgment is affirmed without prejudice to tlie plaintiff'. If lie has good cause of action, and grounds to subject the separate property of the wife, those- rights can be asserted in another action.
Note 14.—Cross v. Everts, 23 T., 523; Fitzgerald v. Turner, 43 T., 79.