This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
By a species of judicial legislation, the Courts of Equity had by the end of the seventeenth century,1 established the doctrine that with reference to property held to the separate use of a married woman, free from her husband's control, she had in many ways the power of a feme sole.2 Legislation in the nineteenth century created separate estates of married women in property which before such statutes was her general estate, subject to the Common Law rights of her husband. Where such statutory estates were created without adding statutory provisions conferring upon the owner the power to contract at law, the rules of equity determined the married woman's power to contract with reference thereto. It is not the province of this work to discuss what property was included in equitable or statutory separate estates, or the rights of a married woman or her husband in such estates except in so far as the contracts of a married woman with reference thereto are concerned. In equity a married woman could not bind herself personally any more than she could at law.3 But her promises upon valuable consideration were enforced rather as obligations resembling contracts than as contracts, by compelling performance out of the separate estate owned by her at the time of making the promise.4 Property acquired by her afterward could not be held for her contracts to use the customary and convenient but rather inaccurate term,5 nor her property which was her general estate when the contract was made, but which was afterwards by statute made her separate estate.6 The claim against the separate estate of the married woman is therefor somewhat in the nature of a lien. It is not a specific lien however. Property sold or disposed of by the married woman before judgment is not subject to her debts contracted while she owned it.7 So adding to a note "for the payment of which I bind my separate estate," is not a mortgage in equity, giving the holder of such notes priority over the holders of notes enforceable only at law by statute.8 Where there is a restraint on anticipation, the income cannot be made liable to a judgment rendered before it came due.9 While the liability of a married woman's estate in equity for her contracts is sui generis, it is an instructive analogy to regard her separate estate as a legal entity, liable itself for her contracts. "It is not the woman, as a woman, who becomes a debtor but her engagement has made that particular part of her property which is settled to her separate use a debtor, and liable to satisfy the engagement."10
12 Marshall v. Rutton, 8 T. R. 545; Musick v. Dodson, 76 Mo. 624; 43 Am. Rep. 780; Hayward v. Barker, 52 Vt. 429; 36 Am. Rep. 762. Contra, Rariden v. Mason, 30 Ind. App. 425; 65 N. E. 554.
13 Rogers v. Phillips, 8 Ark. 366; 47 Am. Dee. 727.
1 Drake v. Storr, 2 Freem. 205.
2 Kloke v. Martin, 55 Neb. 554; 76 X. W. 168; Elliott v. Lawhead, 43 O. S. 171; 1 N. E. 577; Elliott v. Gower, 12 R. I. 79; 34 Am. Rep. 600.
3 Johnson v. Gallagher, 3 De G. F. & J. 494; Aylett v. Ashton, 1 Myl. & C. 105; Ankeney v. Hannon, 147 U. S. 118; Canal Bank v. Par-tee, 99 U. S. 325; Prentiss v. Paisley, 25 Fla. 927; 7 L. R. A. 640; 7 So. 56; Rodemeyer v. Rodman, 5 Ia. 426; Bell v. Kellar, 13 B. Mon. (Ky.) 381; Kocher v. Cornell, 59 Neb. 315; 80 N. W. 911; Pierson v. Lum, 25 N. J. Eq. 390; Fallis v. Keys, 35 O. S. 265; Pilcher v. Smith, 2 Head. (Tenn.) 208.