Faucett v. Currier , 109 Mass. 79 ( 1871 )

Gbay, J.

The written agreement signed by the defendant was absolute • and unconditional to purchase and pay for the plaintiffs’ land, and the oral evidence offered by her to control its effect was rightly rejected.

The remaining question is, whether under the statutes of this Commonwealth a married woman can bind herself by her separate agreement for the purchase of real estate.

By the Gen. Sts. e. 108, § 3, “ a married woman may bargain, sell and convey her separate real and personal property, enter into any contracts in reference to the same, carry on any cade or business, and perform any labor or services, on her sole and separate account, and sue and be sued in all matters having relation to her separate property, business, trade, services, labor and earnings, in the same manner as if she were sole.” The only restriction of the powers and liabilities thus conferred and imposed is, that the assent of her husband or the approval of a judge is necessary to the validity of a conveyance by her of shares in a corporation or of an interest exceeding an estate for a year in real property. In all other respects, her power to make contracts in relation to her separate property, real or personal, and her liability to be sued thereon, are unqualified.

It has been established by a series of decisions, and must now be deemed the settled construction of the statute, that the capacity thus bestowed upon a married woman enables her not only to incur obligations with regard to property which she already owns, but also to bind herself by agreements for the acquisition of property to her separate use. Ames v. Foster, 3 Allen, 541. Chapman v. Foster, 6 Allen, 136. A married woman has accordingly been held to be liable to an action at law upon a promissory note given in payment for land conveyed to her; Stewart v. Jenkins, 6 Allen, 300; Estabrook v. Earle, 97 Mass. 302; upon a contract for the hire of real estate to her separate use; Fiske v. McIntosh, 101 Mass. 66; for the price of wearing apparel purchased for herself; Labaree v. Colby, 99 Mass. 557; or for a coffin purchased by her for the burial of her father, who was a pauper; Gordon v. Dix, 106 Mass. 305 ; but not upon a promise made by her as surety for her husband, without any consideration received by her, or any benefit to her separate estate. Athol Machine Co. v. Fuller, 107 Mass. 437.

The present case is within the rule. If the property in question, when conveyed to her according to the agreement between her and the plaintiffs, was to be held to her separate use, the fact that she had not previously acquired title to it, or did not after-wards take possession of it, did not make her agreement to purchase it the less a contract in reference to her separate property.

The ruling that the evidence offered by the plaintiffs was insufficient to entitle them to a verdict was therefore erroneous, and the verdict directed for the defendant must be set aside and a

New trial ordered.