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.
Upon the question of what contracts within the scope of a married woman's power do in fact bind her separate estate there is even less harmony of judicial decision. Undoubtedly the general rule is that the intention of the parties, to be ascertained according to the rules of equity determines whether the contract binds the separate estate. The divergence of decisions arises in applying this rule to specific states of fact.
1 Taylor v. Meads, 4 De G. J. & S. 597; Pride v. Bubb, L. E. 7 Ch. 64; Cooper v. McDonald, L. R. 7 Ch. Div. 288; Steed v. Knowles, 79 Ala. 446; Bradford v. Greenway, 17 Ala. 797; 52 Am. Dee. 203; Dobbin v. Hubbard, 17 Ark. 189; 65 Am. Dee. 425; Smith v. Thompson, 2 McArt. (D. C.) 291; 29 Am. Rep. 621; Zeust v. Staffan, 14 App. D. C. 200; Miner v. Pearson, 16 Kan. 27; Cardwell v. Perry, 82 Ky. 129; Burch v. Breckenridge, 16 B. Mon. (Ky.) 482; 63 Am. Dec. 553; Cooke v. Husbands, 11 Md. 492; Musson v. Trigg, 51 Miss. 172; Ryland v. Banks, 151 Mo. 1; 51 S. W. 720; Kim v. Weippert, 46 Mo. 532; 2 Am. Rep. 541; Batchelder v. Sargent, 47 X. H. 262; Jacques v. N. E. Church, 17 Johns. (N. Y.) 549;
8 Am. Dec. 447; Methodist, etc., Church v. Jacques, 3 Johns. Ch. (N. Y.) 77; Edwards v. Edwards, 24 0. S. 402; Phillips v. Graves, 20 O. S. 371; Machir v. Burroughs, 14 O. S. 519; Warren v. Freeman, 85 Tenn. 513; 3 S. W. 513; Young v. Young, 7 Cald. (Tenn.) 461; Hollis v. Francois, 5 Tex. 195; 51 Am. Dec. 760; Finch v. Marks, 76 Va. 207; Justis v. English, 30 Gratt. (Va.) 565; Dages v. Lee, 20 W. Va. 584; Hughes v. Hamilton, 19 W. Va. 366.
2 Thomas v. Tolwell, 2 Whart. (Pa.) 11; 30 Am. Dec. 230; Cochran v. O'Hern, 4 Watts & S. (Pa.) 95; 39 Am. Dec. 60; Cater v. Eve-leigh, 4 DeSaus Eq. (S. C.) 19: 6 Am. Dec. 596; Creighton v. Clifford, 6 S. C. 188.
If the intent to bind the separate estate is expressed, no question of presumptive intent can arise. If the debt is specifically charged upon the separate estate, as by note and mortgage,1 or if it is made expressly on the credit of the separate estate,2 it is of course a charge thereon. Indorsing on the contract "I hereby bind my separate estate," is sufficiently specific.3
On the other hand the contract may show affirmatively that the married woman did not intend to bind her separate estate, as by her giving a purchase money note specifying on what property it is a lien.4 In such cases there is of course, no charge on her separate realty.
It may not appear affirmatively from the contract itself whether it was or was not intended that the contract should be a charge on the married woman's separate estate. In such cases the first question to determine is whether the contract is on the one hand intended for the benefit of the married woman or her separate estate; or on the other, is not. If the contract is for the benefit of the married woman or her separate estate,5 the courts are practically unanimous in holding that such estate is bound. Even under a statute providing that a contract shall charge a separate estate if such intention appear therein, it need not appear if the contract is for the benefit of the separate estate.6 The only serious conflict of authority in cases of this class exists where the contract is in writing and it is sought to show by extrinsic evidence that it was intended to charge the separate estate.
1 Hester v. Barker, 42 S. C. 128; 20 S. E. 52.
2 Baker v. Gregory, 28 Ala. 544; 65 Am. Dec. 366; Rogers v. Wood, 8 All. (Mass.) 387; 85 Am. Dec. 710; Jones v. Craigmiles, 114 N. C. 613; 19 S. E. 638; Singluff v. Tin-dal, 40 S. C. 504; 19 S. E. 137: Martin v. Suber, 39 S. C. 525; 18 S. E. 125; National, etc., Bank v. Lumber Co., 100 Tenn. 479; 47 S. W. 85; Priest v. Cone, 51 Vt. 495; 31 Am. Rep. 695.
3 National, etc.. Bank v. Lumber Co., 100 Tenn. 479; 47 S. W. 85.
4 Harvey v. Curry, 47 W. Va. 800; 35 S. E. 838.
5 Halle v. Einstein, 34 Fla. 589; 16 So. 554; Smith v. Poythress. 2 Fla. 92; 48 Am. Dec. 176; Johnson v. Cummins, 16 N. J. Eq. 97; 84 Am. Dec. 142; Armstrong v. Ross, 20 N. J. Eq. 109; Noel v. Kinney, 106 N. Y. 74; 60 Am. Rep. 423; 12 N. E. 351; Dyett v. Coal Co., 20 Wend. (N. Y.) 570; 32 Am. Dec. 598; Patrick v. Littell, 36 O. S. 79; 38 Am. Rep. 552; Avery v. Van-sickle. 35 O. S. 270; Winternitz v. Porter. 86 Pa. St. 35; Scottish, etc., Co. v. Deas, 35 S. C. 42; 28 Am. St. Rep. 832; 14 S. E. 486; Cater v. Eveleigh, 4 DeSaus. Eq. (S. C.) 19; 6 Am. Dec. 596: James v. May-rant. 4 DeSaus. Eq. (S. C.) 591; 6 Am. Dec. 630; Hubbard v. Bugbee, 55 Vt. 506; 45 Am. Rep. 637; Dale v. Robinson, 51 Vt. 20; 31 Am. Rep. 669.
If the contract is not one for the benefit of the married woman or her estate, and no express charge on her separate estate is made, the divergence of authority is complete. Some courts hold that in such case there is no presumption that the married woman intends to charge her separate estate by her contracts, but that such intent must be shown either from the form of the contract or from the surrounding circumstances.7 Under this rule a note does not bind the separate estate if the intent appears only in a trust deed which is void for usury.8 So a note signed by a married woman does not raise a presumption of a consideration moving to her and hence to charge her separate estate; her intent to do so must be shown specifically.9 In other jurisdictions the more reasonable rule prevails that if no other source of payment appears to have been contemplated by the contract, the married woman will be presumed to have intended that her contract should have some effect and not be merely a means of defrauding the adversary party; and that effect can only be to bind her separate estate.10 It is perhaps in contracts of surety-
6 Gibson v. Hutchins, 43 S. C. 287; 21 S. E. 250.
7 Goldsmith v. Ladson, 9 Mack (D. C.) 220; Kantrowitz v. Prather, 31 Ind. 92; 99 Am. Dec. 587; Benson v. Simmers (Ky.), 53 S. W. 1035; Burch v. Breckenridge, 16 B. Mon. (Ky.) 482; 63 Am. Dec. 553; Westervelt v. Baker. 56 Neb. 63; 76 N. W. 440; citing and following Grand, etc.. Co. v. Wright, 53 Neb. 574; 74 X. W. 82; Jordan v. Keeble, 85 Tenn. 412; 3 S. W. 511: Ragsdale v. Gossett, 2 Lea (Tenn.) 729; Shacklett v. Polk, 4 Heisk. (Tenn.) 104; Cherry v. Clements. 10 Humph. (Tenn.) 552; Litton v. Baldwin, 8 Humph.
(Tenn.) 209; Chatterton v. Young, 2 Tenn. Ch. 768; Dismukes v. Shafer (Tenn. Ch. App.), 54 S. W. 671.
8 Wallace v. Goodlet, 93 Tenn. 598; 30 S. W. 27.
9 Grand, etc., Co. v. Wright, 53 Neb. 574; 74 X. W. 82; Westervelt v. Baker, 56 Neb. 63; 76 X. W. 440; Farmers' Bank v. Boyd, - Neb. - ; 93 X. W. 676.
10 Cardwell v. Perry. 82 Ky. 129; Hershizer v. Florence, 39 O. S. 516; Williams v. Urmston, 35 O. S. 296; 35 Am. Rep. 611 (overruling Levi v. Earl, 30 O. S. 147; and Rice v. R. R., 32 O. S. 380; 30 Am. Rep. 610) ; Phillips v. Graves, 20 O. S. 371; 5 Am. Rep. 675; Price v. Bank, ship that the application of these divergent rules is best seen. Where a married woman has no power to bind her estate except that conferred by the instrument creating such estate, she cannot ordinarily bind her estate as surety.11 Where her contract does in fact bind her estate only when it is for her benefit or that of the estate or is expressly charged upon the estate, her signing a note as surety does not bind her separate estate.12