Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-05-06


person granting or devising the estate, to be
ascertained BY a lair construction OF the
deed or will
'Second-If the instrument creating the
separate estate contains any express or i'm
piled restrictions upon the power OF DISPOSE
ton, either as to the mode of conveying or
the purpose for which it may be conveyed,
she can convey it in no other manner and
tor no other purpose.
"Third-Where general power OF dispo-
sitlon Is, by the instrument of settlement,
expressly conferred upon the fenrDle-eoUert,
without restriction or Limitation as to mode
or purpose, she may convey the estate as
fensme-sole by proper instrument OF convey
ance."
In the Young case there was no inhibition
or grant OF power, or any implied or express
limitation thereon, the words being "to the
only proper use and behoof of her, the said
Mary n. Young, TO her cole and separate
use, her heirs and assigns ferever," and the
court held she could mortgage for her
husbands debts or do aught else she
pleased Herewith. In the case at bar there
is no power of disposition given, nor could
it be inferred from anything in the instru-
ment contained that there was any difficulty
in the married woman voluntarily making
disposition thereof for any purpose not
expressly inhibited by fair construction of
the intention of the settler.
WHEN A WOMAN CANNOT MORTGAGE PROP
ERTY TO PAY HER HUSBANDS DEBTS
And this brings us to the single ques-
ton, could she mortgage for the debt
OF her husband? Was she to hold it
free from his debt, liability and con-
troll, or was the conveyance intended to
allow his TO charge her debts thereon; and
this being the wording of the instrument,
can and must the court construe it TO mean
that she shall hold it free from his debts, or
that she can charge it Herewith? Did the
grantor intend by express or implied words
to allow her to charge it with his debts and
contracts. Since the act of 1919 and 1880 the
husband could not change it by any act OF
his own so as to make it liable. He could not
sell or dispose of it in any manner, and she
alone could authorize it. The court cannot
presume that the grantor was ignorant of
the act OF 1880, and cannot presume that
these words were mere surplusage and put
into the deed without meaning any
thing and without purpose. They
appear at the foot of printed
deed, at the end of the covenants
in writing, and they must have some import.
They are all the words that create a separate
estate, and after doing this the grantor says,
"and to be held by her free from" her hus-
bands debts, liabilities and contracts. Now,
to hold free from these debts seems to mean
more than the complainant admits. If the
purpose was that she could not mortgage for
these debts, why the language to be held free
from them? They could not be charged by
the law with them, nor by the husband, but
only by the act OF the wife. Now, it does
seem to the court that the grantor's intention
is manifest, that the lands were not conveyed
for the purpose of rendering them liable for
the husbands debts, but expressly to the
contrary, and the power of disposition must
be construed to etfectuate the intention Of the
party TO be gathered from the whole instru
ment. You are to measure the power OF dis
position by the purpose and intention of the
grantor. No court could, or would, hold
that the intention of the maker should pre-
vail, and at the same time give the grantee
power of disposition to do an act that per SC
defeats that intention. Counsel for COM
plainant refer to the case of Mitchell rs.
Wood, arbitration court at Jackson, Tenn,
as an authority in his favor and against the
views above expressed. have carefully ex-
amined that case and decision, and while /
think it was properly decided upon the
wording of the particular instrument, / do
not think the same at all initiates against
the entire line of Tennessee authority that
each deed must stand on its own peculiar
verbiage, and must be construed so as to
efectuate the intention of the grantor, as
such intention is ascertained from the
In this, Mitchell rs. Wood, case full power
was given to Mrs. Mitchell TO make any dis
position she chose, provided her husband
Joined her in the conveyance. 1t was not
made to secure any debt OF the husband, but
was for present loan of money to the wife,
as appears from the reported case. "The
consideration for this mortgage, as recited in
the deed, was the securing the payment of
0,600, loaned by Polk TO Amelia w.
oil for xuh oh tod kxr
the latter in conjunction with her husband"
The opinion is based upon the fact that ex-
press power was given to make any convey
ance and the further fact that the loan was
to the wife. If the case at bar was similar
to the Young rs. Young case, that decision
would be controlling. The words there were
"to her sole and separate use;" simply Gre
ating a separate estate. Here the same
words were used, and in addition, "and to be
held by her free from the debts, contracts
and liabilities of her present husband" etc.
In this ease the mortgage only purports to
secure the note Of the husband, and in the
Mitchell case 1t was to secure the note of the
wife. In Lightioot Us. Bass, 2 Tenn, CHI. R.
687, Cooper, j., say: at would be total
perversion of the intention of the
grantor in comforting a power of
sale for the purpose of the trust to extend
it to transaction which is plain
violation of this purpose" citing Cardwell
rs Cheatham, Head, IA; Head rs. Temple,
Heiskell, Al, which fully sustain his views.
A power of sale is given to the married
woman to permit her to enjoy fully her es-
tate-not to destroy it, not to defeat the very
object of its creation. To say that she shall
hold it free from his debts, and the intention
was she could make it liable therefor, is
contradiction that cannot be reconciled if
any effect is to be given to the language
used. 10 the light of the principle of the
Young Us. Young decision, l therefore con-
strue the deed in controversy as no! con-
that the debts of the husband can
or shall be charged by the wife upon the
but that it was clearly the intention
that such should not be done, and therefore
hold that the mortgage is void and cannot
be enforced at all against her properly, there
being prohibition upon her power SO to do
upon fair construction Of the language of
the deed as interpreted by me.
D. H. POSITION, Special Chancellor.