Maraman's Administrator vs. Maraman. equitable right be enforced at her instance to the prejudice of his creditors? The authority chiefly relied on by her counsel is this passage in Story's Eq. Jur., sec. 1373: "If a wife unite with her husband to pledge her estate, or otherwise to raise a sum of money out of it, to pay his debts or to answer his ne cessities, whatever might be the mode adopted to carry that purpose into effect, the transaction would, in equity, be treated according to the true intent of the parties. She would be deemed a creditor, or a surety for him, for the sum so paid, and she would be entitled to reimbursement out of his estate and to the like privileges as other creditors." One of the cases cited by Judge Story in support of that doctrine is Tate vs. Austen, 1 P. Will., 264, in which a wife had joined her hus, band in a mortgage of her real estate to secure his debt, which he, by the deed, covenanted to pay to the mortgagee; he died leaving a will, giving several legacies, and owing debts by simple contract, and it was held that his personal estate must be applied: 1. To the creditors by simple contract. 2. To the mortgage. 3 To the legacies. That case certainly does not maintain that the wife is entitled to the like privileges as other creditors, in a contest between her and them. Neimcewitz vs. Gahn, (3 Paige, 614,) and the other cases cited by Judge Story, do not, we beli ve, go farther than this: that if a wife, out of her separate estate, pays her husband's debt, which is secured by a mortgage on his property, she is entitled as against other creditors to stand in the place of the mortgagee. The ground upon which those cases rest was thus stated by Chancellor Walworth: "No reason is given (in Tate vs. Austen.) for postponing the claim of the wife until after all other debts were paid. * Lord Cowper probably considered the claim of the wife as a mere equitable claim against the estate of her husband, for which no suit at law could be brought against his representatives, without adverting to the fact that the covenant of the husband to pay the mortgage money was still an available security in the hands of the mortgagee, which would enable the latter to claim payment out of the real and personal assets of the husband, to the exclusion of the simple contract creditors, and that the wife, standing in the Maraman's Administrator vs. Maraman. situation of a surety, was entitled to be substituted to the place of the mortgagee." (3 Paige, 646.) Where, as in the case before us, the wife's claim is a mere equity, and there is no legal demand to which she can be substituted, it would seem to follow that her claim cannot be enforced to the prejudice of her husband's creditors. In Clinton vs. Hooper, (3 Bro. C. R., 201,) which is referred to by Mrs. Maraman's counsel as being in point, the point decided was, that the wife, by certain declarations to her husband's executor, had waived her right to an exoneration of her estate out of the husband's property; but Lord Thurlow, in his opinion, apparently sanctioned the decision in Tate vs. Auslen, (3 Brown's C. C., 200; 1 Ves. Jr., 173,) and we have seen no decision questioning the doctrine of that case except so far as it may be regarded as denying the wife's right to be substituted to the legal rights of the creditor whose demand she pays. There is no allegation nor proof of a fradulent combination between Mrs. Maraman and her husband, to give him a fictitious credit; but her petition shows that she placed the proceeds of her property in his hands to relieve him from pecuniary embarrassment, and expecting to be paid by him when his circumstances should become better. The natural tendency of her conduct was to give him credit with others, who knew nothing of the agreement between him and her. As she has come into equity for relief, sound policy seems to forbid that her claim, which has no legal validity, shall be placed upon an equal footing with the legal demands of creditors. A different doctrine might open the door to many frauds. In our opinion this claim is not embraced by the statute which requires that, in the settlement of the estates of insolvent decedents, all debts and liabilities shall be of equal dignity and be paid ratably. The object of that statute was to deprive executors and administrators of the power, which they formerly possessed, to pay some debts in preference to others of the same class, and to destroy the preference given by the common law to specialty over simple contract debts, and not to place upon an equal footing with such debts merely equitable Meador vs. Turpin. claims, which, before the statute, were not regarded as standing upon the footing of even simple contract debts. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. CASE 9-PETITION ORDINARY-DECEMBER 13. Meador vs. Turpin. APPEAL FROM THE BRECKINRIDGE CIRCUIT COURT. 1. Objection founded on technical rules of practice waived where the conduct of the party entitled to insist on it has been such as to induce his adversary to believe, and to act upon the belief, that the objection had been abandoned. 2. After the issue formed by the petition and answer has been submitted to the jury, who, upon the evidence introduced by both parties, rendered a verdict for the plaintiff, it is too late for the defendant to move to dismiss the petition upon the ground that it had not been verified. 3. Where instructions found in the record are not embraced in any bill of exceptions, nor otherwise shown what instructions, if any, were given or refused by the circuit court, such instructions complained of constitute no part of the record, and cannot be noticed by the court of appeals. ALLEN & BRUNER, for appellant, cited Civil Code. secs. 164, 165. JESSE W. KINCHELOE, for appellee, cited 15 B. Mon., 630; Civil Code, secs. 414, 369, 368, 165. CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT: The issue formed by the petition and answer was submitted to a jury who, upon the evidence introduced by both parties, rendered a verdict in favor of the plaintiff for $175. "Whereupon the defendant moved the court to dismiss the plaintiff's petition upon the ground that the same is not verified. The plaintiff moved the court to grant him leave to verify his petition, to which the defendant objected, said objection is over Meador vs. Turpin. ruled by the court and said leave is granted the plaintiff, to which the defendant excepts;" and the motion to dismiss the petition having been overruled, judgment was entered in conformity to the verdict, from which the defendant has appealed. To sustain his objection to the judgment, the appellant relies on sections 164 and 165 of the Civil Code, by which it is provided, in substance, that where petitions are filed without verification, as required by section 142, the action shall not on that account be dismissed, if the verification be made on or before the calling of the action for trial; and that "no objection shall be taken, after judgment, to any pleading for the want of or defect in the verification." But neither the language nor object of these provisions authorizes the assumption contended for, that such an objection will, in all cases, and under all circumstances, be available before judgment with the effect of dismissing the action. Like numerous other similar objections founded on technical rules of practice, it may be waived by the party entitled to insist on it, either expressly or by implication. Such implication always arises where the conduct of the party has been such as to induce his adversary to believe, and to act upon the belief, that the objection had been abandoned. Accordingly it has been held that in an action against an executor, where the defendant appeared and answered to the merits, having made no objection for the want of the affidavit and demand required by law in such cases, it was too late, after the plaintiff had gone through with his testimony, to raise the objection for the first time, although the statutes declare that "no suit shall be brought against a personal representative until after a demand is made of him, accompanied with the affidavit required," and that no recovery shall be hid of any such debt until such affidavit be filed in court. (Thomas' ex'r. vs. Thomas, 15 B. Mon., 178.) The present is a stronger case for the application of the rule. The action was brought in December, 1860. The appellant filed his answer in March, 1861, and in April following the cause was continued at his instance. In April, 1862, there Hanly & Co. vs. Downing et al. was a trial and verdict against him, and then for the first time he makes the objection that the petition had not been verified. It was properly overruled. Another ground of reversal relied on is, that the court erred in giving and refusing instructions. The instructions found in the record are not embraced in any bill of exceptions, nor is it otherwise shown what instructions, if any, were given or refused by the court. The instructions complained of, therefore, constitute no part of the record, and cannot be noticed by this court. The judgment is affirmed. CASE 10-PETITION EQUITY-DECEMBER 13. Hanly & Co, vs. Downing, et al. APPEAL FROM THE FAYETTE CIRCUIT COURT. 1. In 1857 a married woman, being the owner of land, not her separate estate, joined her husband in selling it, and made provision in the conveyance that the proeeeds should be invested in other property for her separate use. A part of the proceeds were invested in slaves, which were conveyed to a trustee for her separate use. Held, That the slaves cannot be subjected to the payment of an account against her for goods sold to her upon the faith and credit of her separate estate. 2. A separate estate, whether created before or since the statute, (Rev. Stat., chap. 47, art 4, sec. 17,) cannot be charged in equity for any debt contracted by a married woman. (18 B. Mon., 301; 3 Met., 244.) 3. Where it was agreed by an antenuptial contract between husband and wife, that she might hold her estate for her separate use, the statute supra was held not to ap. ply. (Stites v. Bryan, Ms. opin., 1858.) So where the property is secured to the wife's separate use by post-nuptial settlement. Argu. 4 The statute supra prohibits the sale by a married woman of her separate estate, purchased with the proceeds of her inheritance, although the conveyance to her gave her power to dispose of it as if she were an unmarried woman. (17 B. Mon., 55.) HUNT & BECK, for appellants, cited Stites vs. Bryan, Mss. opin., 1858, cited in note to 2 Rev. Stat., (Stanton's) 32; 2 Ro 4me 95 113 515 |