T. J. Dunbar & Co. v. Mize

McCay, Judge.

1. Section 1783, of our Code, is as follows: “The wife is a feme sole as to her separate estate unless controlled by the settlement. Every restriction upon her power in it must be complied with ; but while the wife may contract she cannot bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband, and any sale of her separate estate made to a creditor of her husband in ex-tinguishment of his debts, shall be absolutely void.” It is contended that this only applies to separate estates created by “settlement,” and not to the “separate estate” which the wife, by the act of 1866, and by the constitution of 1868, retains in all her property at the marriage, or which she may acquire by gift, purchase or inheritance afterwards. But we do not think this a fair construction of this section of the Code. Evidently its intent is to afford a personal protection to the wife in any “separate estate” she may have, against the supposed influence of her husband. As to cases where the settlement controls her, such a clause is unnecessary, since, by the first part of the section, as ivell as by the old law, her powers must necessarily be limited by that. The latter part of the section can only refer to cases where she has a separate estate, and is not controlled or restricted, either by the deed or by the law, in the disposition of it, and we see no reason in the language of this latter clause, and much less in the plain intent of it, to limit its operation to such separate estate as she may have by “deed” specially defining it as “separate estate.” By our act of 1866, and by the constitution of 1868, all property of the wife which she may have at the'marriage, or which she may afterwards -acquire, is, in terms, declared, “sepai ate estate” in her, and as to such property, the very terms of this section declare that she shall not bind it by any contract of suretyship, or by any assumption of her husband’s debts, etc. The words of the section are not “separate estate created by deed,” or “such separate estate,” but “separate estate” simply. By the general rule of law all conveyances of an estate in fee, gave to the grantee a right to dispose of it at pleasure, and any condition inconsistent with this unlimited power of disposal, was void. But in the case of married women, as to their “legal estates,” they could not be disposed of at all, except by a fine, which was a kind of judgment, and was transacted of record. By our act of 1767, a less cumbrous method was provided, but even by this act great precautions are taken to see to it that the wife acts freely and independently of the husband. Inequity, where, under the doctrine of trusts, separate estates grew up in England, the rule of law that a full title to an estate could not be burdened with a condition limiting the power of disposition, was, in this special case, not attended to, and for the plain reason that a separate estate in which the wife was not protected from the influence of the husband,- was of very doubtful benefit to her. Still, if men saw fit to settle the property upon married women, and did not use in the deed this power of restraint, the chancery courts took it for granted that the donor intended to risk the husband’s influence, and permitted the wife to deal with it, even as to him, without restraint. But this section of our Code slips in and limits the right of the wife, even when by the settlement she is unrestrained, and declares that she shall notenter into a contract of surety-ship, or bind her estate .for her husband’s debts, or sell it to pay them. It puts her under disability to do this thing, and declares the act void if it shall be done. Mrs. Valentino’s case in 41 Georgia Reports, 143, does not touch the question we are now discussing. There, the contract of Mrs. Valentino was made in 1860, before the Code, and the question was, whether, under the act of 1851, her earnings during the separation between her and her husband, stood upon the same footing as though they had come to her by a deed restricting her rights. I did not agree to this decision, but it turned on wholly a different question from that involved here.

2. We think, too, the court was right in refusing to sustain the objection to Mrs. Mize’s defense on the ground that she was estopped by the recitals in the deed. Ordinarily, this is, without doubt, the rule. But the wife, as to such a recital, is under duress. It is the same thing as though you were to insist that an infant was bound because his deed recited that he was of full age. If it had appeared that this recital misled the mortgagees, and that they acted to their hurt on the faith of it, there might be some ground for an estoppel in pais, as a woman, even a married one, cannot commit a fraud with impunity. But there was no pretence here of an estoppel in pais; the mortgagees knew as much and perhaps more about the debt than Mrs. Mize did, and in no event are they any worse off. They still have their note on Mize. The mortgage did not hurt that. If there he an estoppel it is an estoppel by deed, and to set up an estoppel in such a case against one under disability would be to defeat the whole purpose of the statute. The protection afforded by the statute would be a farce if it could be evaded by a recital. The same influence that procured the deed could as easily produce the recital, and would not stop to.do it. The case of Finney vs. Sanford, 41 Georgia, 301, was a case of estoppel in pais. The plaintiff had acted on the statement of the wife, he had given up a debt of his own on a third person for the note of the husband, on the faith of the statement of the wife that the husband’s debt was contracted for the use of the estate of the wife. Upon a clear inspection of that case it will be found also that the majority of the court merely held that the recital, as well as the sayings of Mrs. Sanford, were evidence, not that they estopped her.

Judgment affirmed.