Dissenting. — I dissent from the proposition that a deed of a married woman conveying her separate estate is of no validity unless the husband is a. party thereto. The powers of a married woman over her. separate estate are, it would seem, in some of the states limited to the express terms of the instrument creating the estate. The very reverse is the English, as well as the rule of this state. 1 Lead. Cas. Eq. 405. The majority opinion quotes from Story’s Eq. sec. 1392. I understand the author there to speak of an exceptional case, i. <?., where the separate property is given to the wife by a third party during coverture without the appointment of a trustee ; as to which it is said, ‘ ‘ The received doctrine is that if the estate is given to her and her heirs for her separate use, without more, she cannot in equity dispose of the fee from her heirs; but she must dispose of the same, if at al1, in the manner prescribed by law, as by a fine.” But it is also stated that if a clause be added, giving express power to convey, then courts of equity will treat such power as enabling her effectually to dispose of the estate notwithstanding no trustees are interposed. The reason for the distinction is, it is also stated, that the terms, “for her separate use,” are not supposed to indicate any intention to give her more than the sole use and power of disposition of the profits of the real estate during the life of her husband. The same author previously, and in section 1390, says, “It may be now laid down as a general rule that all ante-nuptial agreements for securing to the wife a separate estate will, unless the contrary is stipulated, give her full power of disposing *236of the same whether it be real or personal property, the same as if she were a femme sole.”
Now in the first place, I do not see how the distinction thus made in the text of Story can aid the plaintiffs in this case, for the right of the wife to alienate the rents and profits for the life of the husband, is clearly recognized, and that would defeat this action. In the next place does any such a distinction exist in this state % The established doctrine is that to create a separate estate with all the powers that can or do attach thereto,, the interposition of a trustee is not necessary. Schafroth v. Ambs, 46 Mo. 116 ; 60 Mo. 442. If adequate words are used to create a separate estate, the powers and incidents of such estates follow, and we look to the instrument, not for a specification of the powers, but rather for limitations upon them: Even if a particular mode of disposition is pointed out that will not preclude her from any other unless restrained to the very method pointed out. Kimm v. Weippert et al., 46 Mo. 536 ; Green v. Sutton, 50 Mo. 191. When the separate estate has been subjected to the payment of debts of the married woman, the relief has been extended to the entire separate estate and not limited to the rents and profits during the life of the husband. It is clear the distinction before noted has never been recognized in this state, and the general rule as stated by that eminent author applies in this state whether the separate estate be created before, after, or in contemplation of immediate marriage, and it can make no difference that the estate is given to her by a third person. The important inquiry is : Has she a separate ■estate ? If she has, the powers and incidents follow unless expressly limited. The doctrine of Hulme v. Tenant, 1 Bro. Ch. 20, where it was said “a femme covert acting with respect to her separate property is competent to act in all respects as a femme sole,” has certainly been adopted as the doctrine of this court. The subject was thoroughly considered by Judge Leonard in Whitesides *237v. Cannon, 23 Mo. 457, and the result reached “that if the trust be for the wife’s separate use without more, she has an alienable estate independent of her husband, which she may dispose of as a femme sole owner, and that she has the other power incident to property in general, the power of contracting debts to be paid out of it.” Subsequent cases following that assert in unequivocal language that a married woman possessing a separate estate is as to that a femme sole, and in equity is as completely clothed with the power of disposition as any other property owner. King v. Mittalberger, 50 Mo. 185 ; DeBaun v. Van Wagoner, 56 Mo. 347; M'Quie v. Peay, 58 Mo. 56.
But it is said these remarks were made in cases brought to subject the separate estate to the payment of “debts, and did not involve the question now before the court. The most casual reading of Whitesides v. Qannon will show that the jus disponendi is at the very foundation of the whole doctrine of separate estates of married women. Having the power to deal with her separate property, she has the incident, i. e., the power of contracting debts to be paid out of it. 1 Lead. Cas. Eq. 399 ; Story on Eq. sec. 1397. The majority opinion gives a recognition to the incident, but for the first time in the jurisprudence of this state denies the existence of the very foundation principle upon which the incident has always been made to rest. That the rulings in the different states are diverse upon this subject is, we suppose, well understood. This is due in part to the want of similarity in the statute laws. These laws, often taken as a whole, indicate some general policy which the courts seek to enforce. Again, in the absence of any statute, many of the states have followed or pursued a different line of adjudications. This is enough to show the importance of adhering to our own adjudications when well understood, as it is believed they are. When this court has said again and again that a married woman *238as to her separate property is a femme sole; that as to such property she has the power in equity to sell and ■dispose of the same independent of her husband, how can it be said the court did not mean what was thus 'stated as the law % It is because of the jus disponendi that a defective deed of trust was held to be an equitable mortgage in M'Quie v. Peay, 58 Mo. 56. This is the more apparent by contrasting that case with Heard v. Taubman, 79 Mo. 102. Mr. Bishop in his Law of Married Women, vol. 2, sec. 163, says that the proposition that “in equity a married woman is considered as a femme sole in respect of her separate property,” plainly includes the narrower one that she can sell and convey such property by her own sole act without her husband, the same as'if unmarried. The same author in speaking-of the form of the conveyance, at section 185, vol. 2, says: “ In the absence of any express provision in the 'deed of settlement, the leading- doctrine is that the wife acts as a femme sole in the disposition of her separate equitable estate; consequently that any form of conveyance which would bind her or the estate in equity if she were'unmarried, will be good though her husband does not join in it, and though there is no privy examination.” Citing Sturgis v. Corp, 13 Ves. 190 ; Wagstaff v. Smith, 9 Ves. 520; Pybus v. Smith, 1 Ves. Jr. 189; Feltiplace v. Gorges, 1 Ves. Jr. 46 ; Powell v. Murray, 2 Edw. Ch. 636; and Leaycraft c. Hedden, 3 Green Ch. 512. The statute which provides that “ a husband and wife may convey the real estate of the wife, etc., by their joint deed,” etc., is an enabling statute designed to give them power to convey the wife's general property in which the husband has a marital interest. I am not aware that it has ever before been regarded as a disabling statute. The remaiks made in Huff v. Price, 50 Mo. 228, would clearly indicate that the statute did not interfere in the least with the wife’s powrer over her separate property-I hold that it does not. The answer .in this case sets *239up an equitable defence ; that defence properly prevailed in tlie trial court. ■
Sherwood, J., concurs.