Mead v. Hughes's Administrator , 15 Ala. 141 ( 1849 )

CHILTON, J.

We need hardly institute an inquiry as to the sufficiency of the second plea, to which a demurrer was' sustained. It merely avers that the instrument sued on was executed in consideration of the sale to the plaintiff in error of the interest which Sinthia and George Brittain had in the estate of one Turner, deceased, who was the father of said Sinthia. It does not show that the consideration thus set out was illegal, had failed, or was wanting in any respect so as to render it insufficient to support the contract. It is no answer to the declaration, and consequently interposes no bar to a recovery by the plaintiff.

We think also, the court very properly rejected the sixth plea, on motion. It avers that the writing sued on was totally void, and of no effect, by virtue of the terms of an agreement entered into with the payees thereof, at the time of the execution of said writing, and subsequent thereto. The plea (to say nothing of its repugnant averment as to the time when the agreement was executed) does not aver what the terms of said agreement are, and thus fails to state the ground of defence. The plaintiff is not informed as to the matter he is called on to reply to, nor the jury of what they are to try. 1 Chit. Pl. 23. But as neither of these points are insisted upon by the counsel for the plaintiff in error, in their argument, we will turn to the main questions discussed, arising out of the facts and charges contained in the bill of exceptions.

As it respects the charges involving the sufficiency of the consideration, we think it clear, that the court below committed no error. It does not appear by the bill of exceptions but that Mead received, and now enjoys, all that he contracted for, and we must intend, in support of the judgment, that ' such is the fact, and that he entered into the negotiation with a knowledge of the facts and circumstances under which the payees of the note transferred to him the interest to which Sinthia Brittain was entitled out of the estate of her father. There being no pretence of fraud, mistake, or surprise, in the transaction, we do not see upon what principle Mead can avoid the contract thus entered into. That he may subject himself to litigation, should Brittain sue for a part or the whole of the interest which he purchased, may prove that he made an indiscreet bargain, but certainly, in the absence of other circumstances, furnishes no reason for rescinding the contract.

It is insisted, however, that Sinthia Hickman, one of the payees of the sealed note declared upon, was, at the time of its execution a feme covert, and that for this reason the plaintiff cannot recover. The facts show, that she was married to one George Brittain, in 1832; that they lived together as man and wife until the fall of 1836, when Brittain abandoned her, and left the state, protesting previous to his departure, that he did not intend to live with her. There was some proof that he had since been heard from in the States Illinois and Kentucky, but he had never, in the knowledge of any of the witnesses, since his departure from the state, returned to it. After her abandonment, Sinthia resided in the house of her father, with .her two children, the issue of the marriage, until his death, and at the sale of his property by his administrator, made some small purchases in her own name, and executed her individual note. Also, she had contracted an account with a mercantile firm in the neighborhood for goods. The obligation in suit was executed to her on the 8th day of January, 1842, and at the same time she and her second husband, to whom she had then lately been married, executed and delivered to the plaintiff in error their written transfer of the interest of said Sinthia in the estate of her said father, both as to his real and personal property.

We need express no opinion as to the validity of this second marriage, which was entered into before the expiration of five years from the departure and abandonment of Brittain. We will consider the case as though it had never been consummated. The question is then presented, whether, under the facts of the case, the court below should have given the charges asked by the plaintiff in error. The substance of the charges, when construed as applicable to the facts, is, that the voluntary abandonment of the wife by the husband, and his residence in another state, as shown in the bill of exceptions in this case, did not confer upon the wife the capacity to trade as a feme sole.

There is no doubt but that by the rigid rules of the common law, the wife, under the circumstances here presented, would labor under all the disabilities of coverture, and the authorities cited by the counsel for the plaintiff in error show, that the settled law of the English courts, sustains the view for which he contends. The English cases however are not at all consistent upon the doctrine, as will be seen by reference to the work of Mr. Clancy on Husband and Wife, page 54, et seq, where the cases are collated and commented upon. But a more liberal rule, and one which we think is more consonant with reason and justice, seems to obtain in this country. In Gregory v. Paul, 15 Mass. Rep. 31, it was held, that a feme covert, where the husband had deserted her in a foreign country, and who had thereafter maintained herself as a single woman, and had for five years been living in that state, her husband being a foreigner, and never having been in the United States, was competent to sue and be sued as a feme sole, and that her release would be a valid discharge for any judgment she might recover. The judge, in delivering the opinion in that case, remarks, “miserable indeed would be the situation of those unfortunate women, whose husbands have renounced their society and country, if the disabilities of coverture should be applied to them during the continuance of such desertion. If that were the case, they could obtain no credit on account of their husbands, for no process could reach them; and they could not recover for a trespass on their persons or their property, or for the labor of their hands. They would be left the wretched dependents upon charity, or driven to the commission of crimes to obtain a precarious support.”

In Abbot v. Bayley, 6 Pick. Rep. 89, it was held, that where a husband, by his cruelty, drove his wife from his house, in the state of New Hampshire, and she went to Massachusetts, where she maintained herself for more than twenty years as a single woman, the husband having always been a citizen, and residing in the state of New Hampshire, and having since her expulsion, married and cohabited with another woman, the wife was entitled to sue as a feme sole.— See also, Reeves’ Dom. Rel. 99.

So also in Starrett v. Wynn et al. 17 Serg. & R. 130, the court say, “ the question then arises when the husband has abandoned his wife, and separated from her, does his marital rights still continue so as to give him an absolute property in her acquisitions. Unless some positive rule of law intervenes, as he has cut himself loose from the duties which the relation of marriage imposes, he shall not be allowed its advantages. His conduct would amount to a virtual surrender of his rights.” See also, Robinson v. Reynolds, 1 Aikin’s Rep. 174; Beane v. Morgan, 4 McCord’s Rep. 148; Brown v. Killingsworth, Ib. 429.

These authorities may suffice to show, that if the husband depart from this state into another, without the intention of returning, having declared his intention to abandon his wife, and having been absent, as in this case, for more than five years, the law confers on her the capacity of contracting and suing as though she were sole.

The doctrine of abjuring the realm, as it once obtained in England, by which the husband became civiliter mortuous, was an incident to the right of sanctuary, which was abolished by statute, 21 Jac. 1, ch. 28, and of course finds no place in our law. The decision of this court in Arthur & Corprew v. Broadnax, 3 Ala. Rep. 557, affirms, that if the husband has abjured the state, and remains abroad, the wife meanwhile trading as a feme sole, could recover on a note which was given to her as such. We must consider the term abjure, as there used, as implying a total abandonment of the state; a departure from the state without the intention of returning, and not a renunciation of one’s country, upon an oath of perpetual banishment, as the term originally implied.

■ In the case at bar, the wife, deserted by an unfeeling husband, seeks an asylum for herself and two infant children in the bosom of her father’s family, where she remains until his death. Thus cast upon the world with her helpless offspring, without protection, and it may be without the means of support, she sells to the defendant her humble patrimony for $300, and receives the note in suit to secure the payment, and this transaction occurs more than five years from the period of her desertion. The defendant, who we must presume has received her living, now that he is sued upon the note, says he ought not to pay it, because she has a husband who may return and claim the fund. In our opinion, the husband has forfeited all claim to it, and the charges, with the qualifications, given by the court, are quite as favorable to the defendant as the law will justify.

Let the judgment be affirmed.