Frazier v. Brownlow, 38 N.C. 237, 3 Ired. Eq. 237 (1844)

June 1844 · Supreme Court of North Carolina

38 N.C. 237, 3 Ired. Eq. 237

FRAZIER AND KINGSBURY vs. TIPPOO S. BROWNLOW & AL.

Property in the hands of a trustee, for the solo and separate use of a feme covert and subject to her absolute disposition, will be held liable in a Court of Equity for any debts she may contract, with an understanding, express or implied, that they are to be paid out of such property.

This cause having been set for hearing, was transmitted by consent from the Court of Equity for Halifax County at the Spring Term 18-14, to the Supreme Court.

The following are the facts disclosed by the pleadings:

Mrs. Martha M. R. Brownlow, being seised in fee of two tracts of land situate on Roanoke, in the counties of Halifax and Northampton, intermarried with Tippoo S. Brownlow, by whom she had issue. Brownlow, the husband, became involved in debt, and, indeed, insolvent; and his estate in the lands was sold on execution and bought by William W. Williams, a friend of Mrs. Brownlow. Williams leased the land for five years to one Clanton at a yearly rent of $200, and then, by indenture bearing date the 9th day ot August 1827, he conveyed the said lands and the reversion and the rents accruing on the said lease to MarkH. Pettway, his heirs and assigns, to have and to hold during the natural life of the said Tippoo S, Brownlow, in trust, that the said Pettway should receive the said rents and the profits of the said lands and pay them to the said Martha M. R. Brownlow, to her sole and separate use, free and discharged from any control or claim of her said husband, during the natural life of her, the said Martha, and upon further trust, after the death of the said Martha, to convey by proper assurances the said lands to such person or persons as the said Martha M. R. Brownlow might by any writing, witnessed by two witnesses, appoint, and, in default of such appointment, to convey the same to all the children of Mrs, Brownlow that should be living at her death. Pettway, the trustee, received the rents and profits of the lands up to the year 1833, and applied them, according to the terms of the deed, by either paying them over to ¡y[rSi Brow-nlow, for the support of herself, her husband and their children, or by investing by her directions a part thereof in the purchase of slaves, which were conveyed to Pettway as a trustee, likewise, for Mrs. Brownlow to her sole and separate use.

In 1833, by an arrangement between the persons concerned, the lands above mentioned were sold and conveyed in fee, and the proceeds invested in other land, which was conveyed to William B. Lockhart in fee, asa trustee for Mrs. Brownlow and to her separate use and subject to her appointment as therein stated.

In the year 1838, aud prior thereto, the present plaintiffs kept a retail store from which Mrs. Brownlow obtained the necessaries for herself and family; and on the 7th of November 1838, she came to a settlement with the plaintiffs, gave to them her bond for a balance of $283 48, payable on the 1st of January, 1840, with interest thereon from 1st January 1839. Just below the bond and on the same sheet of paper the following memoranda were at the same time made.

“The above bond is given Frazier & Kingsbury for articles they furnished me for the use of myself and family, and in case it is not paid when it becomes due, then it is my wish and desire, that Mark II. Pettway, to whom property is conveyed for my use and benefit, should sell so much of the same as will pay the said debt and interest; ibis being and shall be a sufficient order to my trustee for the same, this 7th, November 1838.”

Signed M. M. R. BROWNLOW.”

“I as trustee for Mrs. Brownlow have consented to her giving the above order. November 7th 1838.

Signed M. H. PETTWAY.”

On the 14th of July, 1840, Mrs. Brownlow paid on her bond the sum of #150; and May 17th, 1841, the further sum of #25. In October, 1843, the plaintiffs filed their bill against Mr. Pettway, Mrs. Brownlow and her husband, praying for the satisfaction of their debt and costs out of the trust property in the hands of Pettway.

The defendants admit that the slaves held by Pettway are of value sufficient to answer the plaintiffs’ demand; which they also admit to be just, and which Mrs. Brownlow says, she intends to pay as soon as she can raise the money. But they submit, that the debt is not sufficiently charged on the wife’s separate estate, and, further, that the negroes themselves cannot be sold for the payment thereof, but are to go over, under the deed, as a part of the capital — the profits of them only being applicable from time to time to the satisfaction of the plaintiffs.

Purnell for the plaintiffs.

Badger for the defendants.

Ruffin, C. J.

There has been a diversity of opinion, as to the right and power of a married woman to charge her general specialty debts on her separate property, or to dispose of such property, when the settlement designates a particular mode of conveyance oí* appointment, by any other mode than the one specified. Some have supposed, that every security, given by a feme covert,'having separate property, is to be considered as given with a view to her separate estate, because iu that way only can it have any effect. Some also have thought, that, as a married woman, in respect of her separate property, is in a Court of Equity regarded as a Jeme sole, the general right of disposition, as the owner of the property, authorizes her to convey or charge the estate by any instrument or means not positively forbidden in the settlement. But whatever doubts have been entertained on those points, they cannot "affect the present case; in which those questions do not arise. The deed before us, although it provides how Mrs. Brownlow may appoint the estate itself to go after her death, does not designate the manner of charging or disposing of the profits arising in her life lime, which are given to her absolutely. She has, therefore, nn unrestricted authority to charge them with her debt by any instrument or means, which distinctly denotes her intention to do so.

In Hulme v Tenant, 1 Bro. C. C. 16, lands were settled in trust, that the trustees receive and pay the rents and profits to the wife to her separate use, and convey the estates themselves, as she, by will, or deed executed in the presence of two witnesses, should appoint, and in default of appointment, to her heirs. The wife and husband joined in a bond, and alter wards she borrowed a further sum, and then gave her own bond for the whole, amounting ito £180. Thecreditor filed his bill for payment out ofthe separate estate, and Lord Thurlow, without deciding- upon the liability of the estates themsel ves, declared the rents liable to the satisfaction of the debt. In coming to this conclusion Lord Thurlow reasoned to a great degree, as if he thought the feme covert, in respect to the rents, when they arose, as her separate personal property, competent to act in all respects as if she were sole; and therefore that her bond, as a general engagement, bound that property. That has been confidently questioned, and in Sperling v Rockfort, 8 Ves. 164, and Jones v Harris, 9 Ves. Lord Eldon approves ofthe decree, not upon that reasoning, but on the ground that the intention to contract with reference to the separate estate of the wife was to be implied from the circumstances of her joining the husband in one bond and giving another solely. And he lays down the doctrine, which seems to have been generally adopted in succeeding cases, that the separate property is liable only to a person “contracting with her, not as a married woman merely, but as a married woman having a separate estate.” In other words, the engagement must be contracted in reference to the separate property, either express or presumptive. All admit that, if clearly so contracted, in reference to the separate property of the feme covert and upon the faith of it, her engagements must be answered out of her separate personal property and out of the profits, at least, of her separate real estate.

Such is our Case, for the intention to make Mrs. Brown-low’s separate property, held by Mr. Pettway as her trustee, liable, was declared in writing at the time of giving the bond, and therefore, making part of the contract, and is admitted in the answer.

Mrs. Brownlow’s children have no interest in the slaves, but they belong exclusively to her. The rents of the land in her time were hers, as her part of the benefit of the gift. She could dispose of them as she pleased, either by spending them in living, or in the purchase of property, to the use of another or to her own separate use. She chose the last, and the slaves thus purchased are, consequently, liable for the plaintiff’s debts. Indeed, those slaves were the fund, in reference to which, directly, the contract was made, for the land itself had before been sold, and the slaves alone were then held by Mr. Pettway as trustee. It is admitted, that they are of value sufficient to satisfy the plaintiff’s demand, and the costs of this suit ,• and therefore it must be referred to the clerk to compute the principal money and interest due to the plaintiff, and to ascertain the costs of this suit, and upon the coming in of the report, there must be a decree, that, unless Mrs. Brownlow should in some reasonable time pay the sum so found due to the plaintiffs and their costs, Mr. Pettway shall raise the same out of the said trust of negroes by the sale of one or more of them, and pay the same to the plaintiffs, or into Court for them, on or before the first day of the next term of this Court.

Per Curiam. Decree accordingly.