Sonnemann v. Loeb , 11 App. D.C. 143 ( 1897 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

This case presents a question as to the construction of the Married Woman’s Act of 1869, as embodied in Sections 727 and 729 of the Revised Statutes relating to the District of Columbia.

The action was brought to recover on three promissory notes, made by the appellant, Eliza J. Sonnemann, and her husband to the appellee, Meyer Loeb, amounting in the aggregate to the sum of $1,500, and which notes were given for part of purchase money for real estate purchased of and. conveyed to the appellant, a married woman, by the appellee.

The question in the case is raised by a demurrer of the appellee, the plaintiff below, to the plea of the appellant, in which her coverture is set up as a bar to the recovery on the notes. The facts as set out in the plea are thus stated:

“That she, the defendant, was at the time of the making o'f the said supposed promises in the declaration alleged, and now is, the wife of the defendant, Theodore Sonnemann, and that she purchased of the plaintiff certain real estate, and in part payment of. the purchase money she, the defendant, and the defendant, Theodore Sonnemann, at the time of the delivery to the defendant, Eliza J. Sonnemann, of the deed for said real estate, executed and delivered to the plaintiff their certain promissory notes, aggregating the sum of fifteen hundred dollars, which are the several contracts sued upon in the several counts of said declaration, and that said defendant Eliza J. Sonnernann and the defendant Theodore Sonnemann secured said notes, at said time aforesaid, by a deed of trust in the nature of a mortgage on said real estate, the said deed of trust bearing date the 28th day of September, 1894; without this, that the defendant, Eliza J. Sonnernann, undertook and promised in manner and form as in the first, third, fourth, sixth, seventh and ninth counts of the said declaration alleged.”

To this plea the plaintiff demurred; and the court sustained the demurrer, and entered judgment for the plaintiff for the amount of the notes.

The question is, whether the notes were given in a matter having relation to the sole and separate property of the appellant, as if she were unmarried.

Section 727, Revised Statutes, District of Columbia, provides that the right of any married woman to any property, personal or real, acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts. And by Section 729, it is provided that any married woman may contract and sue and be sued, in her own name, in all matters having relation to her sole and separate property in the same manner as if she were unmarried.

If the appellant were unmarried, there could be no question of her liability on the notes; and as the property for which the notes were given was, by the statute, made her sole and separate property, the moment of its purchase, it is difficult to perceive why the contract to secure the payment of the purchase money, did not have relation to her sole and separate property. In this case the deed was made, and the contract of purchase consummated, when the notes were passed; and it would, therefore, seem to be too plain for question that the notes had relation to the property thus acquired by the wife, as her sole and separate property. We think there ought to be no doubt as to this question, and that the ruling of the court below upon the demurrer to the appellant’s plea was entirely correct. And if authority for the support of that ruling were deemed necessary, it would be found in the cases of Ballin v. Dillaye, 37 N. Y. 35, and Stewart v. Jenkins, 6 Allen, 300, referred to by the counsel of the appellee.

In the last mentioned case, in construing a statute very similar in terms to that here under consideration, the court said, that “the most liberal application of the statute could hardly change the result at which we have arrived. The conveyance of the real estate and the delivery of the note in suit were simultaneous. The note was without consideration, and of no force or effect, except in consequence of the vesting of the estate in her as her sole and separate property. She was competent to receive the conveyance, and it passed the title to the land. It would be hard to say, that the contract to pay for the land which she thus took and held was not entered into ‘in reference to her separate property.’”

The case of Ritch v. Hyatt, 3 MacArthur, 536, is mainly relied on by the appellant to support her defence made by her plea. But without stopping to point out the 'circumstances that distinguish that case from the present, it is sufficient to say that the distinction taken in that case, between an executory and an executed contract, and upon which distinction the opinion of the majority of the court appears to be founded, has no application to the facts of this case. Whether such distinction can properly apply in any case arising under the Married Woman’s Act, is a question in regard to which we express no opinion.

We think the judgment ought to be affirmed; and it is so ordered. Judgment affirmed.