McDougal v. People's Savings Bank

delivered the opinion of the court.

There is a conflict of evidence upon the point whether the debt due on the compromise with Ramsey was the debt of the appellant or that of her husband. The Chancellor has evidently found it to-have been appellant’s debt, and we approve this decision. The debt or charge which existed in favor of Ragsdale for the unpaid rent was neither the debt of the husband nor of the appellant. The husband had no sort of connection with the contract from which it arose, and the complainant, being a married woman, did not have-capacity to contract the obligation so as to charge her separate-estate with its payment. It was a mere charge upon the demised premises, and by the lease Ragsdale had carved out for himself a remedy to enforce its payment. The debts of the husband to Rags-dale and others, which were discharged out of the money advanced-by the bank, could not by the complainant be charged upon the-corpus of her estate, and nothing is added to the strength of defendant’s right by invoking the rights of these creditors, because they had none.

Looking behind the note, it appears that the complainant executed a deed of trust to secure the payment of one hundred and twelve dollars due by herself arising from a contract which she had capacity to make and for which her separate estate could be *668charged ; one hundred and sixty-four dollars and thirty-three cents, which was a charge upon the lot in controversy, to be enforced in the specific manner provided by the lease, and which could not by contract with the complainant be made a general charge upon her separate estate; about one hundred and seventeen dollars due by the husband alone, for which the complainant might charge the income of her estate by mortgage or other incumbrance, but for which she could not in any manner charge the corpus of her estate. In default of the payment of any or all of these sums the trustee was authorized and directed to make sale of the land and out of the proceeds of such sale to discharge all of said sums. There was a default in the payment of all of these sums, and the trustee, proceeding under the power conferred, sold the property to the beneficiary for a sum greater than the debt due by the complainant, but less than the amount of that debt and the charge arising under the lease. The debt due by the husband may be left out of consideration, since no part of it has been paid by the sale.

Though it appears that the property is now worth many times the price at which it was sold, it is clearly shown that by reason of the low prices prevailing at that time and the dilapidated condition of the house it brought about its fair market value; nor do we think any unfairness, fraud, or inequitable advantage appears in the fact, conduct, or terms of sale.

We recognize to its full extent the wholesome rule that courts of equity will rigidly scrutinize «ales made under powers contained in mortgages and deeds in trust, especially where the beneficiary becomes the purchaser, and wijl not permit them to stand if there is anything casting well-founded suspicion upon their fairness, but will protect all parties by directing a re-sale under the eye of the court. This rule we neither disregard nor limit, but hold that under the facts of this case it has no application.

The complainant, however, insists that, notwithstanding it may appear that the sale was fairly made by the trustee, yet because a part of the debt which was paid by the sale was beyond her capacity to contract, she being a married woman, the sale itself was void, or, if not void, it was at least voidable at her election.

*669By our statutes which were in force at the time of the transactions under consideration the contracts into which a married woman could enter so as to make liable thereto her statutory estate were specifically enumerated. Contracting within the limits thus-defined, her separate estate could be charged therewith either by the action of courts of law or courts of equity; beyond the limits of the statute she had, in reference to her separate statutory estate, no capacity whatever, whether she did or did not intend by her contract to charge her estate; there was a defined .and limited power to contract. On the other hand, her power of disposition by deed was almost unlimited in its character, though the form and method was minutely defined and an attempted disposition in any other manner was wholly void. She could make no conveyance or incumbrance of her lands unless the husband joined in the execution of the same; but this being done, and her acknowledgment being taken in the form prescribed, her power of disposition or incumbrance was limited only by the provision that no “ conveyance or incumbrance for the separate debts of the husband shall be-binding on the wife beyond the amount of her income.”

And this power of disposition could be executed by an attorney by her properly appointed. Code of 1871, §§ 1778 and 1897.

In the multitude of cases which arose under these statutes there-were great numbers in which the contracts of married women were involved and numbers in which incumbrances or conveyances for the separate debt of the husband were sought to be enforced or defeated, but no case is known to us in which the question now before us was presented.

In Chandler v. Morgan, 60 Miss. 471, it was held that a married woman could not make a valid contract to indemnify one who at her instance became surety for the appearance of another charged with crime, and a mortgage executed by her to secure such indemnity was decreed to be cancelled. But in that case the objection was made before the execution of the power of sale conferred by the-deed, and the mortgage stood at the time of the institution of the proceeding to cancel as a mere security for the performance of the invalid contract, and since the contract was itself unenforceable, so-*670also was the mortgage given to secure it. But a widely different question is now presented, for it is not whether an executory contract, the validity of tvhich is determinable by the existence or non-existence of a consideration, shall be annulled, but it is whether an executed contract and conveyance, concluded and made years ago in the manner directed and provided by the complainant, can now be reopened and avoided because she now desires to avail herself of the defect of the consideration upon which she then acted. We are of opinion, that this ought not to be permitted, and that no sound' construction of the statutes on the subject requires that it should be. It is undoubtedly true that, whether -complainant’s «state was or was not chargeable with the debt as a contract obligation, she had under the statute full power to convey it absolutely and irrevocably in consideration of the demand, whether it was ¡real or invalid, for she might have made a gift of it to whomsoever she pleased, provided her husband joined in the execution of a conveyance acknowledged by her in the manner prescribed by the statute. The fact that she could not have entered into a contract enforceable as such for the conveyance of the estate is not material. A person sui juris cannot make a voluntary executory contract of which any court will compel a specific performance, but when such contract becomes fully executed no court' will overturn it because it was made without consideration. We now recall no executed contract of a married woman, save only that of a conveyance of her estate in payment of the separate debts of the husband, which she could avoid on the ground that she was covert when it was made. The complainant had authority, as we have said, to convey her estate upon such consideration as was satisfactory to her provided it was not the separate debt of the husband. She had authority to appoint an agent to make such conveyance, and this she did.

A part of the debt intended to be secured and for the payment .of which the property conveyed was devoted to sale was her debt, binding upon her estate and enforceable as a contract, and this debt remained unpaid ; the property was of an indivisible character; the contingency upon which the trustee was authorized to act arose, *671.and without objection or protest from her he dealt with the estate as directed by the deed. Under such circumstances the transaction should be held to be closed and unassailable. To permit attacks of this character would unsettle the titles of many estates, and would be especially dangerous in view of the fact that under the Code of 1871 no statute of limitations ran against a married woman.

The decree is affirmed.