Staley v. Hamilton et ux.-Argument of Counsel.

There is no pretence that the debt was contracted for the benefit of the separate property.

It is, however, alleged in the bill that it was lent to appellant for her separate use and benefit, and so used by her; and that the loan was induced by a promise of a mortgage on the property, and made on the faith thereof. There is an entire failure to prove the allegations as to lending it to appellant for her separate use and benefit, or that it was so used. In her answer, which is responsive to both the allegations and interrogatories of the bill, she denies that she borrowed the money, or that it was lent to her, but says her husband informed her it was lent to him; and denies that she received it from the hands of Mrs. H. She further denies that it was loaned to her for her own individual use or benefit, or so used or applied by her; but is informed and believes her husband employed it in merchandise. She says, moreover, she had not a dollar of it for her own use, nor was a dollar expended on her separate property. There is nothing in the evidence of either Mr. or Mrs. Hamilton to the contrary of the statements of the answer as to its being lent or borrowed for her use,or so used. In fact, there is a strange absence from the testimony of any proof of the purposes and use of the loan. Dawkins says the appellant said in one of her conversations with him that it was borrowed for the purpose of starting Mr. Staley in business.

The burden is upon the complainants to show any and all facts to make appellant liable. Tracy vs. Keith, 11 Allen, 214; Hodges vs. Price also illustrates the doctrine.

Not only does the testimony fail to show that the money was lent or borrowed for her benefit, or so used, but it has features that indicate the contrary besides the statement of Mrs. Staley as to mercantile business. Mrs. Hamilton says it was loaned both to Mr. and Mrs. S. at the urgent request of both. She was urged by both that they should have the

Staley v. Hamilton et ux.-Argument of Counsel.

money. They both said they had money in boats on the Chattahoochee river and the house and lots. Mr. Hamilton says: "While urging the loan they said they held an interest in steamboats on the Chattahoochee river, and that they would have the money soon. This assurance they made at frequent interviews." In the first amendment to the bill it is stated that they frequently refused to let Mr. S. have the money on his own responsibility, but would agree to let Mrs. S. have it provided she would make her separate estate responsible for it. The testimony just stated is inconsistent with the quotation from the bill in so far as not letting him have it, as the former states, (as does the bill in other places,) that they both borrowed it. Now, if Mr. S. had been trying to get it before is not the legal presumption that he wished it for himself, and that she came in to aid him in getting it, and they got it for him? Mrs. Staley, moreover, says Mrs. Hamilton told her the money was loaned. She signed the note at the suggestion of her husband, simply to accomplish what he requested and to forward his interests.

Only one witness (Mr. H.) testifies to the allegations of the bill that the money was paid to Mrs. S. This is not sufficient to overcome her denial.

Mr. Hamilton is not sustained by any one as to Mrs. Staley having ever made any payment on the note. Mrs. Staley is sustained in her explanation of the credit by Dawkins' recollection.

The fact that it was through her instrumentality that the money was obtained (if such be a fact) does not establish that it was borrowed for her benefit. In Yale vs. Dederer, 68 N. Y., 334, it is said: "The plaintiff sold the property doubtless upon the credit of the defendant and of her estate, but this might be equally true whether she was principal or surety, and the same might be said of any other person pro

10-19th Fla.

Staley v. Hamilton et ux.-Argument of Counsel.

posed as surety." Manhattan H. & B. Co. vs. Thompson, 58 N. Y., 80.

I believe that the only legitimate conclusion to be drawa fron the record is that it was not borrowed for the benefit of Mrs. S., or so used, but for the benefit of her husband.

There is nothing, then, in the nature or "res gestae” of the contract through which a court of equity can make the debt a charge on the property.

In the case of Yale vs. Dederer, 22 N. Y., 459, it is said: "No rule can ever be stable, the reasons given for which are constantly changing. If we desire precision and certainty in this branch of the laws, we must recur to the foundation of the power of a feme covert to charge her separate estate, and this has heretofore arisen solely from her incidental power to dispose of that estate. Starting from this point it is plain that no debt can be a charge which is not connected by agreement, either express or implied, with the estate. If contracted for the direct benefit of the estate itself, it would of course become a lien upon a well founded presumption that the parties so intended and in analogy to the doctrine of equitable mortgages for purchase money; but no other kind of debt can, as it seems to me, be thus charged without some affirmative act of the wife evincing that intention, and there is no reason why her acts in his respect should not be tested by the same principles and rules of evidence which are applied to similar questions in other cases."

This language is approvingly quoted by this court in the case of Blumer & Blumer vs. Pollak. If the power to charge is referable to the jus disponendi, then in the absence of a benefit resulting to or intended for the property from the loan, and I may say also in the absence of a contract beneficial to the feme covert and based on the credit of the separate estate, where is the power, whatever the intent

Staley v. Hamilton et ux.-Argument of Counsel.

may be, in this State to make a charge on real esate without the separate acknowledgment? It is a limitation upon the jus disponendi in all cases where there is not something inherent in the "res gestae" of the contract by which equity will impose the charge.

In New York and Massachusetts, with statutes giving the wife power to convey separate and independent of ner husband, it is held that the instrument itself must show the intention to charge the property in cases where there are no inherent circumstances creating the charge. In Florida, we believe, that in all such cases not only should the instrument show the intention, but that it should be such an instrument as the statute has prescribed for such cases. Such is the rule laid down in the case of Perkins vs Elliott. See also 1st Leading Cases in Equity, (Hulme vs. Tenant,) Vol. 1, p. 752, reading to end of 1st paragraph on p. 754; Ibid., 754, from last par. therein to end of 24 par. on o 756; Ibid., 759 to 760, 764-5; American Ins. Co. Avery, 60 Ind., 571.

As to lot 35, which is not mentioned in the pretended mortgage, we submit that there is, upon the authority of Yale vs. Dederer, no intent to mortgage or charge this lot legally shown; and upon the authority of Barrett vs. Tewkeberry and Wooden vs. Morris, that the intention could not now be enforced, and that the claim of the complainants to charge it is also not valid for the reasons set forth in the preceding pages.

D. L. McKinnon for Appellees.

The question involved in this case has been so elaborately reviewed recently by this court that I do not deem it necessary to do more than make a few citations, to sustain the position of the appellees.

The modern rule both in England and America being

Staley v. Hamilton et ux.-Argument of Counsel.

that where the facts and circumstances connected with the transactions clearly indicate the intention of a feme covert to bind her separate estate they will give effect to that intention; of course this intent must arise from her free volition, and proof of the intent at the time of contracting the debt must not be doubtful. Though courts hold that the very fact of the wife joining with the husband as surety is prima facie evidence of intent to bind her separate estate, as her name to the note could be of no other benefit. The free volition in doing the act and intention at the time are of the controlling facts which govern courts in determining the liabilities of the wife's property for debts contracted by her or jointly with her husband. 2 Story's Equity, marginal page, from 625 to 628; Notes 1, 2 and 3, P. 424, Hill on Trusts.

There is nothing in any of the decisions of this court which I conceive is in conflict with this doctrine. The tendency of modern decisions is in all cases to give effect to the true intent and meaning of the contracting parties when there is no positive law to forbid it. Any other doctrine would be inequitable and unconscionable, and open wide the door to fraud and enable parties to take advantage of their own wrong. An idea obnoxious to justice, repulsive to equity and antagonistic to morality.

The only question of fact to determine is, did the appellant intend to subject her separate property to the pay. ment of the debt, it being alleged in the amended bill that the lots were her separate property, which is admitted in the answer: besides the deeds filed in evidence show it?

While her answer is very positive in denying her free will in executing the note and mortgage, yet when she comes to testify in response to interrogatories she absolutely contradicts her answer, and admits that she was not forced to sign the note and mortgage, but did so to get money to start her husband in business.