Staley v. Hamilton et ux.--Argument of Counsel. Every material allegation of the bill is amply sustained by the testimony of both complainants and D. C. Dawkins, a disinterested witness. This evidence shows that she executed the mortgage freely and voluntarily, from her acknowledgments before and after the death of her husband, and even up to the institution of this suit. The fact that she intended to bind her separate property for the debt is too abundantly proven by the testimony of three witnesses to admit of even the possibility of a doubt. The sole suggestion in this case is, to determine whether a feme covert can, if she desires, with the consent of her husband, bind her separate estate as surety for him. That is the question for the court to determine, and this court has never before determined this question thus presented. cannot. If the wife cannot bind her separate estate the husband And if they both together cannot bind it it is burden and infliction upon them rather than an advantage. Both might starve for the necessaries of life, while the wife was worth her thousands. Most assuredly the law to protect the wife's property against the debts of the husband did not contemplate any such absurdity. The true spirit and reason of what is familiarly known as the "married woman's law" was only to protect her separate estate from her husband's debts, contracted against her consent. it never was intended to enable either the wife or husband to perpetrate frauds upon third parties. And a more palpable fraud never was perpetrated than this would be if appellant's property is not subject to the debt. For the complainants positively swear that they would not have loaned the money if it had not been that she promised to secure it with her separate property, and refused to take the her husband's individual responsibility. But Courts of equity frown upon fraud and every species of bad faith, under any and all circumstances. Its evil influ Staley v. Hamilton et ux.-Opinion of Court. ence is demoralizing to the administration of justice. And they will never lend their aid to consummate or protect a dishonest evasion of a law, because parties are within the letter, but not within the spirit and reason of the law. THE CHIEF-JUSTICE delivered the opinion of the court. The bill with its amendments, the answer and the proofs show that Caroline B. Staley and her husband, N. O. J. Staley, (who is not now living) executed a promissory note to Narcissa W. Hamilton, the wife of A. B. Hamilton, whereby they promised to pay Mrs. Hamilton twelve hundred dollars with interest. The consideration of this note was one thousand dollars in gold coin, and the date of the transaction May 4, 1866. The money was borrowed for the use of N. O. J. Staley in his business, and was loaned by Mrs. Hamilton upon the importunity of Staley and his wife, they agreeing to secure its payment by giving a mortgage upon two lots, the separate property of the wife in Marianna. A mortgage was drawn up in due form and signed by Staley and his wife (appellant) and proved for record by a subscribing witness, but was never duly acknowledged as required by the statute, and therefore was not operative as against the wife or her property. Mrs. Staley says she did not intend to acknowledge it if she had been asked to do so. The bill is filed for the purpose of subjecting the separate property of Mrs. Staley to the payment of the money borrowed under the circumstances stated. The Chancellor decreed in favor of the complainants (appellees), and held that "the defendant signed said note with her husband for the purpose of subjecting her separate estate" to the payment of the note, and directed the sale of the lots described to satisfy the indebtedness. The statute authorizes a married woman owning real es Staley v. Hamilton et ux.-Opinion of Court. tate of inheritance to sell, convey and mortgage the same in the same manner as she might do if she were sole and unmarried; Provided, Her husband join in such conveyance or mortgage and the same be authenticated as prescribed by laws regulating conveyances; and provided, also, she acknowledge, separate and apart from her husband, that she executed the same freely and without any fear or compulsion of her husband. (Acts February 4, 1835, and March 6, 1845, McClellan's Digest, 755, §§6, 9.) According to these statutes a married woman can create a legal charge upon her separate property only by the means so designated l'eake vs. LaBaw. 6 C. E. Green, N. J. (Eq.,) 269, 282. The English equity rule is that if a married woman enters into a general contract to pay money the inference is that she means to pay it, and if she has a separate estate it will be inferred that she intended to charge such estate with it. An equitable estate is refered to. Lord Brougham in Murray vs. Barlee, 3 Mylne & K., 209, 223, says: "In all these cases I take the foundation of the doctrine to be this: the wife has a separate estate subject to her own control and exempt from all other interference or authority. If she cannot affect it no one can, and the very object of the settlement which vests it in her exclusively is to enable her to deal with it as if she were discovert. The power to affect it being unquestionable, the only doubt that can arise is whether or not she has validly encumbered it. At first the court seems to have supposed that nothing could touch it but some real charge, as a mortgage or an instrument amounting to an execution of a power, where that view was supported by the nature of the settlement. But afterwards it was more regarded, and the court only required to be satisfied that she intended to deal with her separate property." And see Story's Eq. Jur., 11 Ed., §1401, et seq. Staley v. Hamilton et ux.-Opinion of Court. But the rule prevailing in this country in regard to the separate statutory property of married women is different from the equity rule in respect to a married woman's separate estate which is properly an equitable estate and not her legal property-an estate vested in a trustee for her benefit, over the body of which she has no legal power of alienation except such as might be given by the terms of the grant or settlement creating it. Dollner, Potter & Co. vs. Snow, 16 Fla., 86. In the case of the separate statutory property, especially under our statutes regulating alienation, the equitable rule cannot prevail, and it cannot be inferred that a married woman intends to alienate her property, except by the prescribed method, when the contract is not for the benefit of herself or her separate property, for the law will not permit her to do indirectly what it forbids her to do directly. In the case of Perkins vs. Elliott and Wife, 7 C. E. Green, 127, a married woman had signed a note with her husband as his surety, not for her own benefit or for that of her separate property, and the note contained these words: "The said obligation to be charged upon the separate estate of said Louisa Elliott," and the court says that "it is not within the power of a married woman to charge her estate by any writing except a mortgage acknowledged as required by law, or for debts contracted for the benefit of her separate estate, or for her own benefit on the credit of it.” This doctrine was affirmed in the same case on appeal in 8 C. E. Green. In Johnson vs. Cummins, 1 C. E. Green, 97, 104, the Chancellor says: "The general principle is that a married woman is enabled in equity to contract debts in regard to her separate estate, and that the estate will be subject in equity to the payment of such debts. In order to bind the separate estate it must appear that the engagement was made Staley v. Hamilton et ux.-Opinion of Court. in reference to and upon the faith and credit of the estate. But where a married woman, living apart from her husband and having a separate estate, contracts debts, the court will impute to her the intention of dealing with her separate estate, unless the contrary is shown." In Peake vs. LaBaw, 6 C. E. Green before cited, the Chancellor says: "The courts of this country have declared the estates of married women, held under the married women's acts, to be liable for debts contracted by them for the the benefit of their separate estates, or for their own benefit on the credit of these estates. But they go no further than this." The Court of Appeals of New York in Yale vs. Dederer, 22 N. Y., 450, held, upon the question whether the mere signing a note as surety for her husband, with parol proof that credit was given to her separate estate, would amount to an equitable charge, that it would not. "No court has ever held or intimated that parol evidence was admissible to prove that the bond or note of a feme covert was intended to be a charge upon her estate." "If investing her with separate property," says Chancellor Kent in The Meth. E. Church vs. Jaques, 3 Johns. Ch., 77, "gives her the capacity of a feme sole, it is only when she is directly dealing with that very property." We refer to Dollner, Potter & Co. vs. Snow, 16 Fla., 86; Merritt vs. Jenkins, 17 Fla., 593, 597; Fairchild vs. House, 18 Fla., 770; Mattair and Wife vs. Card, Admr., 18 Fla., 761; Blumer and Wife vs. Pollok et al., 18 Fla., 707, and Thrasher vs. Doig, 18 Fla., 809, where the effect of a contract by a married women upon her separate property is considered. The doctrine laid down in New York, New Jersey and in a majority of the States at the present time is that the intention to charge the separate property will not be in |