dissenting.
A married woman, though deserted by her husband, is still a married woman, and though, under our law, she may sue and be sued, and make contracts as a feme sole, still any property she may, in any manner acquire, is “separate property.” And under the 1773d section of the Code, she cannot bind her separate estate by any “assumption of the debts of her husband.”
It is said, however, that this contract was made before the adoption of the Code. And this is true. But what was the law before the Code? The Act of 1851 provides that if the husband desert the wife, any earnings she may accumulate, or any property she may acquire, in any way, shall be her separate estate, and be to her sole use, “not subject to the debts, contracts or control of her husband.”
This Court, in 25th Georgia, 654, in the case, of Keaton v. Scott, and in Kempton v. Halowell, 24th Georgia, 56, and in Hicks v. Johnson, 24th Georgia, 194, has decided that property settled to the “sole use of the wife, not to be subject to the debts of the husband,” cannot, even by the agreement of the wife to pay such debts, be made liable therefor.
I am unable to see how certain words in a deed shall be held to mean one thing, and precisely the same words in a statute shall be held to mean another thing. 'If property, settled by deed to the sole use of a wife, “not to be subject to her husband’s debts,” be beyond her power of disposal, so as to charge it by her agreement, with her husband’s debts, I do not see why the Act of 1851, which declares any property acquired by her, during his desertion, shall be vested to her sole use, “not subject to her husband’s debts,” does not also *restrict her disposition of it, to the same extent. And more especially is this true, if we consider that the Legislature, in 1863, by the Code, has de*153dared that to be the public policy and law of the State, in all cases of separate estate in the wife.
The Court, in the 24th and 25th Georgia Reports, proceed upon the ground that the meaning of the words, “to her separate use, not be subject to her husband's debts,” necessarily requires the construction of them insisted upon in those cases. If that be so, the meaning of the words in the statute requires the same construction. The Legislature has just as much power to restrict as the maker of a deed; the only question in those cases was, did the grantor, by the words used, so restrict? It seems to me that the same answer must be given in both cases. Moreover, this is the natural meaning.
The property is said, by the Act, to be “to her sole use and benefit.” This made it hers; this deprived the husband and his creditors of all power over it. Why add other words? Why say “not to be subject to his debts?” In the cases I have referred to, this Court say these words restrict her use of it, so that she cannot, even by her express agreement, charge it with his debts. The construction put upon these words in the Act of 1851, by the majority of the Court seems to me to make the words “not to be subject to his debts,” useless tautology, since the other words, “to her sole and separate use,” fully and legally convey all the meaning it is assumed was intended. I think these words mean something in the statute as well as in a deed.
It is not pretended that this judgment will bind the property in Mr. Fitch's hands, as trustee. To bind that, proceedings must be had against him, and even then her right to bind it by her contract, will depend entirely upon the .'terms of the deed. For these reasons, I dissent from the judgment of the Court in this case.