Wallace v. Lea, (1898) 28 SCR 595

Supreme Court of Canada

Wallace v. Lea (1898) 28 SCR 595

Date: 1898-06-14

Margaret Wallace and William Wallace, Her Husband (Defendants)

Appellants

And

Paul Lea (Plaintiff)

Respondent

1897: Nov. 9, 10; 1898: June 14.

Present.—Sir Henry Strong C.J. and Taschereau, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.

Married woman—Separate property—Conveyance—Contracts—C. S. N. B. c. 72.

Sec. 1 of C. S. N. B. ch. 72, which provides that the property of a married woman shall vest in her as her separate property, free from the control of her husband and not liable for payment of his debts, does not, except in the case specially provided for, enlarge her power for disposing of such property or allow her to enter into contracts which at common law would be void. Moore v. Jackson (22 Can. S. C. R. 210) referred to. Lea v. Wallace et al., (33 N. B. Rep. 492) reversed.

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Appeal from the decision of the Supreme Court of New Brunswick[1], reversing the judgment of the Chief Justice in favour of the defendants.

The following statement of facts and questions at issue in the case are taken from the dissenting judgment of Mr. Justice Hanington in the court below:

The plaintiff claimed that, at the request of the female defendant, and on the credit of her separate property, he furnished her with lumber and other material, used in the reconstruction and repairing of a hotel, on her real estate, in Moncton, to the amount unpaid in all of about $698, A part of the amount, $89.90, is made up of materials furnished one Thorne, who was carrying on the work before it was taken in hand by the defendant personally. One Lounsbury was originally the contractor with the female defendant for the construction of the work, including materials. He, after a part performance of his contract, being unable to complete it, made an assignment and gave up the work. Thorne then went on with the job for some time, ordering the materials from the plaintiff, amounting to the sum of $89.90, and then abandoned it. After Thorne gave it up the female defendant continued the work herself, and it is for materials furnished her during such construction, (including Thorne's work), that the plaintiff claimed payment out of her separate estate. The female defendant disputed the fact of having ordered any of the goods for which the plaintiff sought to recover, contended that she was in no way liable for the goods Thorne got, and that the only goods she got, or authorized to be had at the plaintiffs, were paid for by her.

The cause came down for hearing before Mr. Justice Tuck, sitting in equity, who found that the female

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defendant was not liable for the amount of the goods furnished to Thorne; that the balance of goods, amounting to $598.81, were ordered by her and furnished by the plaintiff, on the credit of her separate property, but that the plaintiff was not entitled to a decree for the payment thereof out of such separate property, as her tenure of, or estate or property in, it under the Act then in force or otherwise, was not such as would raise any liability in law or equity against either her real or personal property, and ordered that the bill should be dismissed. The property against which the decree was sought is real estate which came to the female defendant partly by inheritance and partly by purchase.          *           *           *           *            *

The principal question is: Was the learned judge, as the law then stood, in error in refusing to decree that the value of the goods, which he found had been furnished by the plaintiff to the female defendant, should be paid for out of her own property? Since the decree, the Provincial Legislature passed an Act whereby the property of a feme covert would be liable in a case like the present, and the question had to be determined, whether or not it was so liable before such enactment.

Pugsley Q.C. and Teed for the appellants. The property of the female defendant was not and is not settled to her separate use by any deed, will or settlement, but falls within the provisions of chapter 72 of the Consolidated Statutes of New Brunswick, relating to the property of married women, and the effect of the statute is not to make the property of a married woman property held to her separate use within the meaning or principles of courts of equity, or to make it liable to the burdens which equity imposes upon such estates; Fitzpatrick v. Dryden[2]; Re Cleveland[3];

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Lamb v. Cleveland[4]; Pourrier v. Raymond[5]; Taylor v. Meads[6]; Royal Canadian Bank v. Mitchell[7]; Chamberlain v. McDonald[8]: Mitchell v. Weir[9]; Wright v. Garden[10]; Kraemer v. Glass[11]; Moore v. Jackson[12].

The property of the wife, under chapter 72, is entirely the creation of the statute, and her power of disposition must be governed by the statute itself, and there is no analogy between the power of disposition of a woman under the statute and a woman having property to her separate use in equity, with power of anticipation. The judgment of Sir George Jessel, in the case of Howard v. The Bank of England[13], is not applicable to the Act now presented for construction; he was dealing with legislation in which the husband's rights were clearly taken away, and in which there were no limitations upon the wife's disposition. Even if the statute should be held to have created an estate to the separate use of the woman as fully as recognized in courts of equity, yet all property held to the separate use is not chargeable with the payment of debts,—it must be with full power of an anticipation. If there be a restraint upon that, or a limitation to a particular mode of disposition, the property can be charged only in the manner pointed out by the limitation. London Chartered Bank of Australia v. Lempriere et al.[14]; Pike v. Fitzgibbon[15]. The provision in section one that, the real property shall not be conveyed, encumbered or disposed of while she lives with her husband, except by her being a party to the

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instrument duly acknowledged, &c., is a distinct and positive restraint or fetter upon the disposition of the real estate, at least in any mode other than that so pointed out; Mitchell v. Weir[16], per Strong V. C; Moore v. Jackson[17], at page 225, per Strong C J.

The appellant contends that if the land be conveyed under the decree now made, it will be "disposed of" in a manner contrary to the express term of the statute of which the evident scope was to protect the property of the wife whilst she lived with her husband.

The statute neither removed her disability during such period nor improved the liability for debts upon her estate. No jus disponendi is given to the woman by the first section of the Act.

We also rely upon the decisions in Chamberlain v. McDonald[18]; Mitchell v. Weir (1); Royal Canadian Bank v. Mitchell[19]; Pourrier v. Raymond[20]; Wright v. Garden[21].

Powell Q.C. for the respondent. The respondent contends that the price of lumber and material obtained by the female defendant on the credit of property which accrued to her after marriage should be chargeable upon and paid out of such property which by the chapter seventy-two of the Consolidated Statutes of New Brunswick, vested in her and was owned by her as her separate estate, and is of the character of separate estate which in equity may be charged with the debts of a married woman. In construing the first section, the words "the real and personal property belonging to a woman before or accruing after marriage, except such as may be received from her husband while married, shall vest in her and be owned by her as her separate estate," make all property.

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coming within the section separate property in equity, and attaches to it in equity all the incidents that attach to equitable separate property vested in and owned by her; In re Poole's Estate, Thompson v. Bennett[22], but gives to the married woman no separate legal rights either disponendi or of contract, or of action with reference thereto. See remarks by Strong C.J. in Moore v. Jackson[23], at page 218, and also Howard v. The Bank of England[24], per Jessel M.R. The contention that because the estate is separate estate created by statute it is a new creature of statute, and not as such possessed of the peculiar properties of separate estate in equity, is directly in variance with In re Poole's Estate. Thompson v. Bennett (1); Butler v. Cumpston[25], and Sanger v. Sanger[26].

The judgment of the court was delivered by:

THE CHIEF JUSTICE.—I am of opinion that this appeal must be allowed.

Mr. Justice Hanington in a very full and able judgment has set forth the reasons for a similar conclusion, and as I entirely agree in his opinion I need not repeat at length the arguments brought forward by him in which I fully concur.

In the case of Moore v. Jackson (2) I had occasion to consider a question similar to this, on an appeal from the Court of Appeal for the Province of Ontario. The judgment in that case was not, it is true, an authority binding the learned judges of the court below in the present case, inasmuch as it arose under the statute law of another Province in some respects not identical with the enactment now in question, and I do not refer to it as a controlling authority. In my judgment in

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Moore v. Jackson[27] however, I examined the general rules of interpretation applicable to legislation such as that we have to apply here, and I therefore refer to it as embodying the reasons why I think the judgment now under appeal is not sustainable.

The first section of chapter 72 of the Consolidated Statutes of New Brunswick does, it is true, provide that the property of a married woman shall vest in her and be owned by her as her separate property, but while this indicates that her enjoyment of her property shall be free from the control of her husband, and that it shall not be liable to her husband's debts, it does not indicate that she shall have the power of binding it, encumbering and disposing of it as if she were an unmarried woman. So far from this being the case it contains an express provision that she can only convey it by a deed "duly acknowledged as provided by the laws for regulating the acknowledgements of married women," thus conclusively shewing that her jus disponendi was not enlarged but remained as it was before the Act, requiring a conveyance duly acknowledged, to which her husband would be a necessary party. This certainly does not do away with the disability of a married woman to alienate her freehold lands or to enter into contracts which at common law would be absolutely void. Again, it is apparent that the legislature did not intend any such change in the law from the circumstances that the same section provides for her power of disposition as if she were a feme sole in the case of desertion by her husband, a power which is not conferred generally but is confined to that particular case.

Further, the provision at the end of the section that her separate property should be liable for her debts

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contracted before marriage and for judgments recovered against her husband for her torts whilst under coverture warrants the conclusion that the liability in contracts entered into during coverture was not intended to be imposed, and that her property was not liable to judgments and execution except in the cases specially provided for, an inference which is strengthened by the change in the law effected by the legislation of 1895 enacted during the pendency of this suit.

As the exhaustive judgment of Mr. Justice Hanington covers all the grounds referred to, and as from the recent changes in the law the question here raised is not likely to be of frequent occurrence, I do not feel called upon to do more than indicate what I consider conclusive grounds for not upholding the judgment under appeal.

The appeal must therefore be allowed with costs, and the decree of the learned Chief Justice dismissing the bill must be restored, with costs to the appellant in all the courts.

Appeal allowed with costs.

Solicitors for the appellants: Teed Hewson & Hanington.

Solicitor for the respondent: David I. Welsh.