Levy v. Darden , 38 Miss. 57 ( 1859 )

HARRIS, J.,

delivered the opinion of the court.

The plaintiffs in error filed their action in this court to recover an account for goods sold and delivered by the wife of the plaintiff Emanuel Levy, to the defendant.

To this complaint, defendant pleaded the general issue ; and 2d. That at the time of making the contract sued on, plaintiff, Jeannette Levy, was a feme covert, and the wife of the said Emanuel, and incompetent to contract.

Plaintiffs replied that the goods, &c., sold to the defendant, were the separate property of the said Jeannette.

To this replication, the defendant demurred,

1st. Because the replication does not allege by what right, and in what manner, said Jeannette became possessed of said goods as her separate property; and of the right individually to dispose of the same, so as to enable her to sue for the price of the same in a court of law.

2d. Because said Jeannette, as a feme covert, has no right to sue for the price of said goods so sold, upon a contract with her, admitting the title to said goods to have been in her, as her separate property.

The court sustained the demurrer, with leave to plaintiffs to reply over, which the plaintiffs declining to do, judgment was entered for the defendant, and the case brought here by writ of error.

The only error assigned is the judgment of the court sustaining defendant’s demurrer to plaintiffs’ replication.

The first ground of demurrer is based upon the principle that at common law a feme covert cannot be joined as a party plaintiff with her husband, except where she is the meritorious cause of action, as upon a contract made with her durn sola, or for the recovery of property belonging to her before the marriage.

Laboring under a general disability to- sue, it was necessary for her in suing to bring herself within the exception by special averment in the pleadings.

While a feme covert generally, she was neither capable of contracting nor of suing, or being sued, at law.

Our statutes of 1889 and 1846, under which the contract sued on was made, have materially changed the common law rules on this subject. Under these acts, she may acquire and hold separate estate, both real and personal, in her own right; and by the Act of 1846 it is specially provided that all suits upon contracts in relation to or affecting the separate property of the wife, either real or personal, shall be prosecuted in the joint names of the husband and wife, and may be prosecuted in the courts of common law jurisdiction.

Under these statutes, promissory notes made payable directly to the wife during coverture, it is said in Bodgett v. Ebbing, 24 Miss. R. 245, became prima facie her separate property, and suits for their recovery should be in the joint names of husband and wife.

She may execute a valid receipt for property which belongs to her as separate estate. Billingslea and wife v. Young, 33 Miss. R. 95.

Our statutes having bestowed upon the wife the general capacity to sue jointly with her husband upon contracts in relation to or affecting her separate property, it was sufficient, to bring her within the operation of the statute, and to avoid the general disability of coverture relied on by the defendant, to show by her replication that the suit was founded upon a contract in relation to her separate property. How she acquired her right to that property, whether by gift or bequest, or whether it arose from the rents, issues, profits, or proceeds of her separate estate, could not ' be a material inquiry, since the statute has annexed no such condition to the exercise of the right thus conferred.

The second ground of demurrer relied on is, that as a feme covert the said Jeannette has no right to maintain this action for the price of goods sold upon a contract with her, although such goods were her separate property.

It is insisted, in argument, in support of this ground of demurrer, by counsel for defendant in error, that it is not competent for a married woman, by the common law, to make any contracts. That all contracts made by her for the disposition of her separate estate are void, except such as are specially permitted by the statute or settlement, or other instrument authorizing or creating such separate estate.

By the common law, an action might be maintained in the joint name of husband and wife upon an express promise made to the wife alone. Bodgett v. Ebbing, 24 Miss. 245; 1 Tucker Lect. 124.

So where she has separate property. Ib. and 2 Blackf. Rep. 1280.

It cannot be therefore said, that in all cases at common law even, the contracts of married women in relation to their separate estate, or where made by the consent of the husband, are void.

Neither is it maintainable as a legal proposition that the jus dis-ponendi of personal property, belonging to a feme covert as her separate estate, can only exist when it is specially conferred by the statute or conveyance from which the ability to hold it in her own right is derived.

The rule is, that she has a right to dispose of all her separate personal estate, and of the profits of her separate real estate, as if she were sole, unless restricted by the provisions of the settlement. 2 Leigh R. 183; 1 Mad. 371; 3 Rand. 381. So it is held by Lord Thurlow in 3 Brown’s C. C. 340. See also lb. 8; 1 Ves. Jr. 46; 9 lb. 520 ; and see 1 Tuck. Lect. and cases cited 113, 114; and the reasoning employed.

If, therefore, the property sold in this case was the separate property of the wife, as alleged in the replication, and she had the right to dispose of it, the defendant has no right to complain, unless the statute has prescribed some special mode by which alone the sale can be made. The Act of 1846 provides no restriction as to the sale of the wife’s property, except upon the sale of her slaves or her real estate. She had, therefore, the right to sell the goods if they were her separate property as alleged. It follows that the demurrer to the replication should have been overruled.

Let the judgment be reversed, cause remanded, and a venire de novo awarded.