Parker's v. Lambert's Adm'rs , 31 Ala. 89 ( 1857 )

HICE, C. J.

— One of the general rules of the common law is, that a married woman has no power or capacity to contract, so as to authorize a judgment to be rendered against her personally, either by a court of law or a court of equity, on a contract made by her during coverture. To this general rule there are exceptions; but the facts which constitute the hypothesis of the first charge given by the court below, do not bring the present case within the exceptions. Upon such a state of facts as supposed in that charge, the capacity of the wife to bind herself by a contract made during the coverture, so as to authorize either her or her executor to be sued thereon at law, is untouched and unaffected by any of our statutory provisions. By such contract, she may charge her separate estate, and authorize a court of equity to enforce it as such a charge ; but a court of law cannot enforce such a contract, either against her or her personal representa-live, although she has a separate estate, unless such facts are proved as to bring the case within some exception to the general rule of the common law hereinabove stated. Chitty on Contracts, (edition of 1861,) 168, 171 Gibson v. Marquis, 29 Ala. 668 ; Rowland v. Logan, 18 Ala. 307; 2 Bright on Husband and Wife, 249, 265.

It is fully settled, that a husband and wife cannot, by a deed securing a separate and sufficient maintenance to her, dissolve the relation of marriage,- so as to enable her, even whilst living apart from him, and enjoying such separate fund, to contract as a feme sole. — Marshall v. Rutton, 8 T. R. 545 ; and authorities cited supra.

Nor the error in the first charge given by the court below, we are compelled to reverse the judgment, and remand the cause;- and we deem it proper not to pass directly upon the other questions presented on the record, but to leave them untouched for the present.

Judgment reversed, and cause remanded.