delivered the opinion of the court:
The liability of a married woman for her contracts has been presented in such various forms, and has been so often discussed and adjudicated by the courts, that it might have been supposed that principles had been established which would be of easy application to any complication of circumstances. It is not now controverted that the various statutes respecting a married woman’s separate property, and her power of disposing of, and binding it and herself, by contracts., are enabling ; in' derogation of the rights of the husband as at common law, and confer upon her legal capacity which she did not before have. In determining, therefore, her responsibility for a debt, it must be ascertained what was the subject matter and-epnsideration. If it comes within the statute, and is of the class of those for which she can bind her separate estate, then it' is a legal demand, enforcable in a court of law. The statutes so far as they go, relieve from disability and confer legal capacity.
Considering the note and deed in trust in this case, as the promise and security therefor, given by the wife, for a loan of money, by Yiser to her, two enquiries arise: First, has she capacity to borrow money at all ?' and, secondly, how is the question affected if borrowed for any of the purposes set forth in the statute? The purpose and consideration stand out prominently as the test and criterion of the validity of the contract. It does not at all advance the argument whether *710the promise is by promissory note, bond or oral. If the married woman can incur the debt at all, she may make a memorial of it in any form and dignity of writing.
Manifestly, a married woman has no power to bind her estate for borrowed money. For that is not one of the obligations which she may incur, within either the 24th or 25th sections of the statute of 1857. Code, p. 836. She may contract “for family supplies, or necessaries, wearing apparel for herself and children, or for their education ” * * * etc. Last clause of section 25. If she is under obligations already to pay such a debt, she might, in order to discharge it, borrow pioney and so apply it. The lender of the money in such a case would be substituted to the merit of the debt of the original creditor. The transaction would not impose any additional burden on her property. The effect would be merely to shift a meritorious debt from one person to another. It might be very beneficial to her by avoiding the vexation and costs of a spit, and procuring a postponement until her resources would be available.
She might borrow money, for the purpose of defraying the expenses of herself and family, and the education of her children, and apply it to expenses, as they from time to time arise. The debt in this instance- would be to the lender, instead of to, the person who furnished the family necessaries, and instruction to the children.
The general proposition remains true, that the wife can not borrow money; and if that were all that was shown, no liability would be imposed on her estate. But if the money was actually used to pay debts already existing for the domestic purposes named in the statute, or, if borrowed s.o the ready money might be paid for such expenses, and was paid, it would be within the equity and policy of the statute to hold her estate bound to the lender.
The merit and validity of such a contract depends exclusively on the fact, that the money, in the first case actually extinguished a charge upon her estate, and in the second, that it was actually used to defray the expenses and support of the. *711family. It is the use to which the money is put, and that only, which makes the case meritorious. This precise question was adjudged in Brown et ux. v. Thomas E. Helm, MSS. Opinion, book I, pp. 523-4-5. It was there conceded that a femme covert did not have the power under the statutes to borrow-money; but, said the court, “if the money was used in making purchases, or discharging obligations which were within her power to make or incur, and the separate estate shall have received the benefit of the money, she would be liable. But in no event should she be liable for any more of such money than was used by her as aforesaid.”
We think the doctrine of this case is within the manifest equity, and intendment of the statute, and does not expose the separate estate to unnecessary risks, nor does it really enlarge the powers of the married woman; whilst the principle is reasonable and just, we would not be disposed to push it further, but would be inclined rather to insist that each case should be clearly brought withiq its range and operation.
The principle is, that whilst a married woman cannot bind her estate for money loaned, nevertheless, if the lender can show that it was actually applied to discharge a debt, for which the separate estate was already bound, or to make purchases, for the enumerated purposes, for which she might charge her estate, then the lender may recover.
In making the loan Yiser took the risk, that Mrs. Scruggs would use the money for the purposes recited in the note, “of purchasing family supplies and necessaries, and wearing apparel for herself and children.” If the money was not appropriated to exonerate her estate from valid debts, or to improve her property, or to maintain the family, or for some other object for which she could incur liability, there is no obligation resting upon her, or her estate, which can be enforced. The appellant, Yiser, has wholly failed to show such use of the money. It would follow then, that unless Mrs, *712Scruggs is responsible upon some other view of the case, the decree of the chancery court is right.
It has been strenuously pressed in argument by the counsel for the appellant, that Mrs. Scruggs is bound by the recitals in the note and deed in trust, and that they operate by way of estoppel. If such were the effect, then Mrs. Scruggs could not deny that the loan was made for the purpose named. But she can no more borrow money for that purpose than any other. The circumstance that charges her estate is, not the intent or use to which.the loan was to be put, but how was it used, was it actually employed to exonerate the estate from debt, or to meet expenses for which the estate would be bound ? If not, then the estate is not chargable. It is not a question of good faith, but a capacity to make a particular contract. The wife cannot bind herself for a loan of money. But whilst that is so, if it was really employed for the advantage of the estate and family, as allowed by law, then there arises as strong an equity in favor of the lendor, as if the “ necessaries ” for which it had been paid, had been bought upon a credit, and the seller was suing for the price. The single and sole merit, which Yiser could have, would be that Mrs. Scruggs had so used'the money. He took, therefore, the risk that she would so apply it. If she passed it to her husband for his use, as is proved, Viser occupies no better position than if he had merely loaned the money without a specification of the purpose.Suppose Mrs. Scruggs had given a covenant, that she would apply the money as recited in the note, could a suit be maintained upon it? That would not be pretended. Yet, such a covenant amounts to an agreement, so to apply it.
The recital of the objects for which the money was procured, gives no validity to the promise. The note would have been just as good, if it were omitted altogether. If Mrs. Scruggs had solicited the loan, stating that she wanted it for the support of her family, and the note had been a simple promise to pay, without such recital, it would be this *713transaction in legal effect. The right of recovery would depend on the fact of how the money was used.
The strongest light in which the case can be put for the appellant, is that Mrs. Scruggs was under a contract to use the money for the purposes named in the note. But the answer to that is, she had no capacity to make such a contract. As to that she is under disability.
The whole case resolves itself into this, Yiser trusted Mrs. Scruggs, that she would expend the money for her family. uses ; if she did, he would have cause of action, if she did not,- her estate would not be bound. He was bound to see to the appropriation of the money.
This brings us to the conclusion, that the note, to Yiser, and the deed in trust to secure it, considered exclusively with reference to her power, under the statute, to borrow money, would be void and of no effect.
The next question: is the encumbrance á valid security, regarding the note as the debt of her husband ?
It was ruled in Sessions et ux. v. Bacon et al., 23 Miss., 273, and other cases, that inasmuch as the wife had the power under the act of 1839, to convey her property, by absolute sale and conveyance, she had the lesser power of making .a conditional sale or conveyance; that she could mortgage for her husband’s debt. This construction enabled her to pledge the entire separate property, its corpus, the title in fee. This decision was made in 1852. Prior to this in Berry v. Bland, 7 S. & M., 83, and Frost & Co. v. Doyle et ux., ib. 75-76. It had been held, that the debts of the wife could not be chargeable upon her separate estate, held under the statute, except in the mode therein mentioned.
It was in this condition of the law, that the revision of 1857, was made, which enacts on this subject: “And no conveyance or encumbrance for the separate debts of the husband shall be binding on the wife beyond the amount of her income.” Last clause of sec. 23, p. 336, Code. The first clause provides that the wife’s property shall not be taken for the husband’s debts, “ nor shall such property, or *714any part * * be sold, conveyed, encumbered or mortgaged * * unless the wife shall join in the conveyance.” We take the last clause as a limitation upon the right to encumber or mortgage for the separate debts of the husband.
Although the notes are not obligatory on Mrs. Scruggs, there is no doubt they were on the husband. Whitworth v. Carter, 43 Miss., 66. Being void as to her, does that make them the separate debts of the husband within the statute?
We think (aside from this) that the preponderance of evidence' is that the loan was made to the husband on the credit and faith of the deed in trust on the wife’s property.
In her original bill, Mrs. Scruggs gives that complexion to the transaction. “ She merely signed the notes and deed in trust for her husband and as his surety.”. In her amended bill, she makes substantially the same statement: 4t she was not present when the consideration was passed between Yiser and her husband; denies that any money was ever paid to her, or was ever advanced to her to buy family supplies ; but admits that the money ‘‘ was borrowed upon her name and credit.” The negotiations were between Mr. Scruggs and Yiser. Pope Scruggs was sent by the former, with the notes and deed in trust from Corinth to Oxford, who there delivered them to Yiser, received and brought back the money and handed it to Mr. Scruggs. The wife, in the meantime, was in Huntsville, Ala.
The meaning’ of the words “ separate debts ” in the statute, are those debts, for which there is no liability upon the wife or her property. Debts for which the husband is alone responsible. Dibrell v. Carlisle, 48 Miss. Rep., 706, 707. In that case the note was signed by the husband and wife, and secured by mortgage on her property. Part of the note was for a separate liability of the husband, and part was valid against the wife. Held: That the mortgage pledged the corpus of the property for so much of the debt as the wife could contract; but as to the residue, which was only obligatory on the husband, it would stand as security_on the *715“income.” Without reference to this case, which was not then reported, though decided several years before by the High Court of Errors and Appeals, this court put the same construction on the statute in Foxworth v. Magee, 44 Miss, Rep.,432, 3, 4.
Under the statute of 1857, the wife may encumber her estate, for all the liabilities, which she can by the statute incur. Such encumbrance extends to the corpus of the property. But for the debts of the husband, she can only mortgage or encumber the income.
If Mrs. Scruggs were, through her separate estate, bound for this debt, then the deed in trust would take hold of the corpus of the estate to the full extent of her interest. But inasmuch as the debt was the husband’s alone, the deed in trust, encumbered no more than the income.
The subsequent promise of Mrs. Scruggs, after she became discovert, did not, and could not, have the effect to vivify and vitalize the debt, so as to give it effect on the encumbrance, to any greater extent than both or either were operative and v alid at .the time they were contracted and made. That point was considered and ruled in Porterfield v. Butler, 47 Miss., 170 ; et seq.
We are of opinion, therefore, that the complainant had an encumbrance and security to the extent of the income of the property embraced in the deed of trust. The debt being usurious, an account should be taken, purging the notes of the usury, and applying the payments as prescribed by statute.
Decree reversed and cause remanded for further proceedings in accordance with this opinion.