#### Mansel Hall, et al., *vs.*Christina W. Faust, et al.

Bill by creditors of a married woman to subject her separate estate to their demands. The husband of defendant had deserted her for more than fifteen years, and was residing in another State. The defendant hei’self had also recently removed to Georgia, and had there obtained a divorce. Bill sustained but the recovery restricted to demands for necessaries.

Where a husband deserts his wife absolutely and completely, by a continued absence from the State, with intent to renounce *de facto*the marital relation, she, the wife, may, it seems, bind her separate estate by her contracts for necessaries.

BEFORE WARDLAW, OH., AT FAIRFIELD, JULY, 1855.

■Wardlaw, Ch. This is a creditors’ bill whereby the plaintiffs seek to subject to the payment of their demands the distributive share of the defendant, Christina W. Eaust, in the estate of her father, the late Dr. William Bratton, who died intestate on the 1st December, 1850.

The defendant Christina, intermarried on the 12th April, 1887, with Clement 0. Eaust, in .this State. After living together about three years, Clement C. Eaust abandoned his wife, removed first to Georgia and subsequently to Mississippi, where, it is said, he has married another woman and now resides. Since he deserted his wife, he has made no provision for her support, and she has contracted sundry debts with the plaintiffs, holding out to them, as they allege in their bill, in the first instance, that she would cause her debts to be provided for through her father, the said Dr. William Bratton, and since his death, through her distributive interest in his estate. The demands of the plaintiffs consist of accounts for goods sold and delivered, and notes; proof of which was made at the hearing. It was stated in argument by plaintiffs’ *295counsel, that since the filing of the bill, other demands, besides those set forth, have been entrusted to his charge.

The distributive share of Mrs. Eaust in her father’s estate consists of slaves and funds in the hands of the commissioner, together amounting in value to upwards of twelve thousand dollars. Proceedings for the partition of Dr. Bratton’s estate were filed in this Court, February, 1851, in which Mrs. Eaust was a party, plaintiff, and her husband a party, defendant. She set forth her ill-treatment by her husband, his abandonment and desertion of her, and prayed a settlement of her share, free from the control, interference, and liability of said Clement C. Eaust: and until such settlement could be perfected, and the said share be allotted and assigned to her next friend, until further order. An order for a writ of partition was granted by Chancellor Dargan at Chambers, 25th February, 1851, in which it is recited that Mrs. Eaust had made application for a settlement, and her husband, though a defendant named in the proceedings had not then been made a party by service of process or publication, whereupon it was ordered, with a view of preventing the marital rights from attaching, that the said land and slaves which shall be allotted to the said Christina Eaust, in said partition, be delivered into the possession of her said next friend, William M. Bratton, who shall stand seized and possessed of the same as trustee, until the further order of this Court, and who shall, from the income of said shares of said lands and slaves, pay to her in the meantime a sum sufficient for her support and maintenance. On 7th July, 1851, Clement 0. Eaust filed an answer, whereby he disclaimed all right, title and interest, in, and to the estate, real and personal, of the late Dr. William Bratton, mentioned in the bill, and voluntarily consented and agreed that his wife’s share should be settled upon her to her sole and separate use, upon such terms, conditions and trusts, as she and her solicitors, and the Court might deem right and proper.

The return of the Commissioners in partition as to the real *296estate, was Heard before Chancellor Dargan, at Chambers, 7th December, 1852, and in the order made therein, it was “ directed that until the further order of this Court, that the distributive share of Mrs. Christina Eaust be held by William M. Bratton, as her trustee, to secure the same against all claims or liabilities of her husband, Clement C. Eaust.”

In 1851 Mrs. Eaust removed to DeKalb County, Georg^ and instituted proceedings for a divorce, and at October term, 1852, of the Superior Court for that County, a divorce, *a*vinculo, was duly granted.

At July Term, 1853, of this Court, Mrs. Eaust filed a petition setting forth that she had removed to Georgia, and obtained a divorce from Clement C. Eaust, and prayed that her trustee, William M. Bratton, might deliver to her certain of the slaves, in Georgia, and that he might be authorized to sell the remainder of the slaves and pay over to her the proceeds, with her share of the funds arising from the sale of the real estate, and other funds to which she was entitled. The petition states “ that the sale is necessary to raise funds to purchase a residence, for the payment of just debts and for other purposes.” The Chancellor declined to grant the prayer of the petition, but directed that it might be retained, that such further proceedings might be instituted as she might be advised.

On 1st November, 1853, Mrs. Eaust intermarried with William W. Eaton, in Georgia, where they still reside. The parties defendant to the present proceeding, are the said Christina W. Eaust, (or Eaton,) Clement C. Eaust, William W. Eaton, and William M. Bratton — as to all of these, the bill is ordered *pro confesso,*except the defendant, William M. Bratton. His answer admits the principal allegations of the bill, his belief that she is indebted to various persons, but that he is not informed as to the particulars of such indebtedness. He submits to the judgment of the Court, but suggests *297that she was sufficiently 'provided for by her father in his life time, and that she is improvident and extravagant.

It was proved at the hearing that Mrs. Eaust had said she was desirous of having her creditors paid, and would do so as soon as she could obtain control of her property. The trustee has already permitted her to take a few of the slaves to Georgia. There was no proof of the extravagance of Mrs. Eaust, nor of provision having been made for her by her father in his life time, as suggested in the trustee’s answer.

In the consideration of this case, two difficulties in the way of authority arise, one from the circumstance that the Courts of this State do not recognize the validity of a divorce of a South Carolina marriage by a foreign tribunal, otherwise the confirmation of these claims by Mrs. Eaust since her divorce in Georgia, might authorize proceedings against her alone; nor are we aided by analogy in cases of separate estates, because we do not recognize (as in England and most of the States) the authority of the wife to charge her separate estate.

At law, the general rule is, that the wife cannot contract, nor sue and be sued, as a *feme sole.*But an exception to this was established very early, in cases where the husband was banished or had abjured the realm. *(Belknap's*case, Co. Litt. 132, b. and 133, a; *Wright*vs. Wright, 2 DeS. 244; *Deerly*vs. *Duchess of Mazarine,*1 Ld. Raym, 147; 1 Salk. 116.) The reason of this exception was also held to apply if the husband were an alien, always living abroad, and in such case the wife was sueable as a *feme*sole, in like manner as if the husband had abjured the realm. In *Walford*vs. *Duchess DePienne,*(2 Esp. R. 554,) Lord Kenyon said, if the wife was not to be personally chargeable for debts contracted under such circumstances, she would be without credit and might starve. The same doctrine was held in *DeGaillond*vs. L'Aigle, (1 B. & P. 35 7,) that *a feme covert*was chargeable with her contracts when the husband, being a foreigner, had voluntarily abandoned her and resided abroad, and that it was for her benefit,. *298that she should be liable in order to enable her to obtain a credit and secure a livelihood. But it was at the same time said that there was no instance in which the wife was held personally liable on her contracts on the ground of her husband residing abroad, when he was an Englishman born. But it is said by Chancellor Kent, (2 Kent, 157,) in commenting upon these cases, it is probable that the distinction between husbands who are aliens and who are not aliens, cannot long be maintained in practice, because there is no solid foundation in principle for the distinction. And accordingly we find that the distinction has been disregarded in several American Courts. In *Éhea*vs. Phenner, (1 Peters, 105,) it was said that the law seems to be settled that when the wife is left by the husband, has traded as a *feme*sole, and has obtained credit as such, she ought to be liable for her debts, and the law is the same, whether the husband is banished for his crimes or has voluntarily abandoned the wife. Where the wife of an alien had been deserted in a foreign country by her husband and had been domiciled in Massachusetts for five years and maintained herself without any provision from her husband, it was held that she was competent to take a legacy and sue and be sued as a *feme sole*and discharge any judgment she might recover; and the case was the same if the husband had been a native citizen and had deserted his wife and become a subject of a foreign State. *(Gregory*vs. *Paul,*15 Mass. 31.) Residence in another State is equivalent to residence in a foreign State. *(Abbott*vs. *Bayley,*6 Pick. 89.) In *Gregory*vs. *Pierce,*(4 Mete. 478,) it was held that if the husband deserts his wife absolutely and completely by a continued absence from the State and with an intent to renounce *defacto*the marital relation, the wife may sue and be sued as a *feme sole,*and this was considered to be an application of an old rule of the common law and equivalent to an abjuration of the realm.

These are cases at law where the great difficulty seems to *299be one of form after tbe plea of coverture, and is probably insisted on in England, because tbe Court of Chancery there will grant relief in cases where the wife has a separate estate and she contracts.

In the present case the formal difficulty of the husband not being joined is obviated, and both husbands are made parties; the husband who could object by law [Faust]' disclaims any interest in his wife’s estate and no relief is sought as to him, which is another important distinction between this and many of the reported cases where it was sought to charge the husband with the wife’s contracts. This is not the casé of a separate estate. Since Faust’s disclaimer was filed, no further steps have been taken in this Court for a settlement. The estate is vested in the next friend of the wife, temporarily, without any trust being created, and simply' to prevent the marital rights of Faust from attaching. The application to this Court in 1853 was to deliver the property to her control; and that being refused, her estate remains as left by the pro- ' visional orders of 1851 and 1852.

As far as the Court can perceive from the evidence, and by’ the default in answering, this application is not disapproved by’ the defendant herself, but that circumstance is not regarded as material. I conclude that it is for the benefit of the wife that she should be liable under such circumstances, in order to enable heir to obtain a credit and secure a livelihood, (1 B. & P. 257,) and that the plaintiffs are entitled to the relief they seek, and it is so decreed.

I was at first inclined to restrict the recovery of the creditors to necessaries. But that view has been modified, on reflection. This is not like the case of infants, nor does the reason of the application in such case apply.- ’ The defendant was of full age when these contracts were entered into, and if liable at all, she is liable for the full amount of her contracts.

It was suggested at the hearing that other claims exist *300besides those of the present plaintiffs, upon -which, separate proceedings had not been instituted, because this was a bill filed on behalf of all creditors. This is in accordance with the practice of the Court and if the creditors had proceeded separately they would have been ordered to consolidate.

It is ordered and decreed, that the claims of the plaintiffs as set forth in the bill be adjudged to be established, and that the. other creditors of Christina "W. Eaust or Eaton be authorized to present and prove their demands before the Commissioner on or before the first day of May next, and that he report thereon, and also as to what estate of C. *W.*Eaust is in his hands and in the hands of her trustee. Costs to be paid out of the funds.

The defendant, Christina W. Eaust, appealed and now moved this Court to reverse or modify the Circuit decree, upon the grounds:

1. That the said Christina *W.*Eaust being, according to the statement of the bill, a married woman whose husband was, at the time of their marriage, a citizen of this State, and is still living, was not capable of binding herself by the contracts set forth in the said bill.

2. That if bound at all, it could only be for articles necessary and proper for her maintenance.

3. That if she was liable, the demands were not sufficiently proved, and a reference should have been ordered thereon.

*Gregg,*for appellant.

1. According to the well settled law in England, a married woman can only be sued as a feme sole when her husband, living apart from her and beyond the seas, is an alien; or being a subject, has been banished.

*3012. By the English law, if the husband, being an English subject, deserts his wife, and voluntarily goes abroad, she cannot be sued as a feme sole.

Such has been recognized to be the law in South Carolina. See, besides cases cited in decree, *Bogget*vs. *Frier,*11 East, 301; *Marshall*vs. Button, 8 T. R., 545; *Boyce*vs. *Owens,*1 Hill, 8; *Beane*vs. *Morgan,*4 M’C., 148; Comyn’s Dig. Tit. Abjuration; 4 Blackst. Comm. 332.

3. There has been no decision in South Carolina altering the English law. The decisions to that effect in some courts of the United States ought not to outweigh the English authorities.

4. The Court of Equity holds Mrs. Eaust’s property for her protection, and has refused to let her take it in her own hands, for fear she may lose it. To allow her to waste the whole of it by her contracts would involve an inconsistency. Therefore, while making her its ward, the Court ought at least to protect her from any contracts except such as may be beneficial to her; and her liability should be confined to articles necessary for her maintenance.

*Boylston,*contra.

The opinion of the Court was delivered by

Dunkin', Ch.

The decree of the Circuit Court has given relief to the plaintiffs against the separate estate of the defendant, Christina *W.*Faust. By the law of Westminster Hall, she had authority'to bind her. separate estate; but, according to the now settled law of South Carolina, a married woman has no authority over her separate estate, except as derived from the express provisions of the settlement. Deserted by her husband, as the defendant has been, for more *302than fifteen years, divorced from him by the laws of a sister state, she is still regarded as his wife by the law of South Carolina. Although the owner of a competent estate, with which her husband has no authority, (nor, according to his answer, any inclination) to interfere, she has no legal power to bind that estate. Without the ordinary recommendation to credit which attaches to proprietorship, she might thus frequently be subjected to many of the inconveniences of destitution. Under such circumstances it is the peculiar province of this Court to intefere as well for the benefit of the married woman as for the protection of those who have supplied her necessities. But we are of opinion > that, the plaintiffs asking the aid of this Court, their recovery may properly be restricted to such articles as were necessary and proper for the defendant in the condition in society which she occupied. The decretal order of the Circuit Court is modified accordingly.

Johnston and WARDLAW, CC., concurred.

*Decree modified.*