McGavock v. Whitfield , 45 Miss. 452 ( 1871 )

Simrall, J.: ^

The plaintiff brought suit against the defendants in error, to recover the amount of a promissory note made by them. An amended declaration was filed, and the pleas which had been put into the original were made applicable to the new pleadings. Mrs. Laura Whitfield pleaded coverture; her husband also pleaded coverture. To these pleas there were replications, setting out that the note was given for supplies for the plantation of the said Laura, and for her family supplies and necessaries; wearing apparel for herself and children; for mules, horses and buildings upon her lands, the same being her separate estate. To the replications there was a rejoinder, traversing the consideration as set out in the replication, and averring that the note was on its face joint, she being a married woman, incapable of making such a contract, concluding with a verification.

To these there were' surrejoinders, admitting that the note was joint, that Mrs. Whitfield was covert, and reiterating the consideration of the note as set out in the replications.

The fact was also relied upon in the pleas of H. B. Whitfield, that the note did not bind the estate 'of his ward, he having no power, as guardian, to execute such a note, on the consideration mentioned in the pleadings.

To the surrejoinders, H. B. Whitfield and Laura, his wife, demurred, assigning several causes, which was sustained, and the plaintiff declining to amend or plead further, judgment was rendered in bar of his suit.

There were other pleadings in the cause, but as no question is made upon them, it is not necessary to notice them.

The object of pleading is to put upon the record the altercations of the parties, until they come to an issue of fact or law. All the pleadings of the plaintiff, subsequent to his declaration, must be in aid and support of the cause of action therein stated. He is not, in his replication, or other after-pleading, allowed to shift his ground, and bring forward a new and independent cause of action, that would be a departure; so the defendant must conform his rejoinder to a maintenance of the defense made by his plea.

The plaintiff counted upon a promissory note made by H. B. Whitfield, personally, H. B. Whitfield, guardian of John D. Young, and Laura Y. Whitfield. The defense set up by the pleas was the coverture of Laura Y. Whitfield, and that the guardian did not by this note impose a liability on the estate.

The declaration did not disclose the fact that Laura Y. was the wife of H. B. Whitfield, but the plaintiff, in order to obviate the effect of coverture upon the contract, replied the new matter, that the consideration of the note (detail-, ing it) brought the contract within the 25th art. of the Code of 1857, in reference to married women and their separate estate, and therefore the wife was bound by it. In this, there was no departure from the cause of action in the declaration; it was rather a novel assignment, disclosing fully and at large the same “right” of action. It was legitimate and logical pleading, precisely as in the case of Hardin v. Phelan, 41 Miss.

The defendant in the rejoinder set up no new matter, nothing of avoidance was introduced, it brought into the record no new facts in aid of the plea. Nor did the surrejoinder introduce any facts in support of the declaration and replication. It is a familiar rule in pleading that a demurrer brings into review the whole record, and should be applied to the first material defect in the pleadings. The demurrer of Mrs. Whitfield to the surrejoinder ought to have been extended back and applied to the rejoinder to the replication. After the declaration the pleadings must either be a traverse or confession and avoidance. This rejoinder does not include any new matter of avoidance, and ought to have been a traverse of the replication. The demurrer of H. B. Whitfield ought to have been extended back and applied to his plea of his wife’s coverture. Her coverture was no defense for him, and is not a bar to a recovery against him. Whitworth v. Carter, 43 Miss. 61. For these errors the judgment must be reversed. As the case will be returned to the circuit court, it may be proper to state the principles of law applicable to the defenses made in the pleadings. It is no objection to the liability of Mrs. Whitfield that the note is the joint promise of the makers, if the facts detailed in the replication to her plea of coverture be true. If the contract be such as she can make, within the terms of the “married woman’slaw,” it is obligatory on her, although other parties sign as her sureties. There is no law which permits a guardian to bind the estate of his ward by incurring for him the obligation of surety for another. If it be true that H. B. Whitfield signed the note as guardian for his ward, no judgment affecting the ward’s property, or to he satisfied out of it, can he rendered.

Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.