Colby v. Lamson , 39 Me. 119 ( 1855 )

Rice, J.

— The legislature of this State, during the last ten years, have made very important changes in the principles of the common law, apjdicable to husband and wife. The effect of these changes upon the existing legal relations of married persons, not only as between themselves, but also as between them and other members of the community, it is impossible to foresee. The law applicable to married persons, was, before these changes were made, well defined, and its application to all the existing relations in society, well understood. After the serious inroads which have been made upon the common law, it will require much time and patient labor to readjust its provisions, and adapt its principles to other existing laws so as to produce harmonious action, and cause the rights of parties who sustain different relations in life, to be fully understood. To accomplish this object must be the work of time, and it is also to be apprehended will be the occasion of much litigation.

The statute of 1841, c. 21, § 1, provides that any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase or distribution, in her own name, and as of her own property, exempt from the debts or contracts of her husband.

It has been decided, that under this act a married woman may take a conveyance of real estate directly from her husband, and that such conveyance will bo valid against all parties except the prior creditors of the husband. Johnson v. Stillings, 35 Maine, 421. There would seem to be less objection to her becoming the purchaser of personal property from a stranger.

But it is contended, that inasmuch as the promissory note of a married woman is void, therefore she cannot become the purchaser of personal estate. This Court did decide, in the case of Howe v. Wildes, 34 Maine, 566, that the statutes then in force relating to the rights of married women, did not remove the common law disability, which prevented a married woman from giving a valid promissory note. And in Swift v. Luce, 27 Maine, 285, it was decided that the common law was not so far altered by the Act of 1844, c. 117, as to enable a feme covert to sell her personal property without the consent of her husband. But the questions determined in those cases are not involved in the case at bar. The question now presented is whether a married woman is competent, with the consent of her husband, to become a purchaser of personal estate, in such manner that the husband shall not become chargeable with the price thereof. The statute in express terms provides that she may become seized and possessed of real or personal property, by purchase, in her own name, and as of her own property. To hold that she could thus become the absolute owner of property, over which the husband has no control without her consent, and yet that he should be liable to be sued for the payment of the value of such property, would involve an absurdity. Nor is it necessary to the validity of the contract with the wife, that she should be competent to give a valid promissory note. Payment may be made in many other forms.

Such being the situation of the parties, the question to whom tbe goods were actually sold and credit given by tbe plaintiff, was distinctly presented to tbe jury. Whatever may have been said by tbe Judge in relation to tbe liability of tbe wife, or her right to employ her husband as clerk, were immaterial to tbe issue then before tbe Court, though it would be difficult to perceive why, if tbe wife has the power to release to the husband tbe right of control of her property, she might not' employ him in the subordinate capacity of clerk. But the jury were simply asked to decide whether the credit was given to the husband, and they have decided that question in the negative. Whether the evidence warranted that decision, we are not called upon to determine. In the instructions no error is perceived. The exceptions are therefore overruled.