Wooster v. Northrup , 5 Wis. 245 ( 1856 )

By the Court,

WHITON, C. J.

Tbe principal question to be decided in tbis case is, whether a married woman can be sued upon a promissory note given by her for a valuable consideration.

Tbe declaration avers that two of tbe defendants were married women at tbe time of making tbe note declared on, and that their coverture still continues. Tbe declaration also avers that tbe note was made in part payment for an interest in certain real estate which tbe payee of tbe note (who was also a married woman) bad in certain property, which was sold and transferred by tbe payee to tbe said two married women, and which property tbe said payee held in her own sole right, jointly with tbe two married -women who are defendants. The declaration also avers that • the last-named defendants acquired their right or interest in the property during their coverture, but since the-passage of an act of the legislature, entitled; “ An act to provide- for the protection of married women ■ in the enjoyment of their own property,” and that they held the same to their own sole and ■separate use, with full power to sell the same, as if.they were unmarried. The plaintiff sues as the hearer of the note.

To the declaration the defendants demurred,.assigning causes. The demurrer was sustained, and judgment was rendered for the defendants. It has been contended by the counsel for the defendants in error, that the question as to the liability of femes covert to be sued upon contracts made in relation to property which is secured to them by the act of the legislature above alluded to, does not arise in this case, for the reason that it does not appear that the note, which is the foundation of this suit, was given for ¡aroperty which the married women who are defendants could hold to their separate use; nor that the married woman who is the payee of the note owned the property, the sale of which constituted the consideration of the indebtedness for which the note was given.

The reason urged in support of this position is, that as the declaration does not show when the women were married, it cannot be presumed that they were married since the act of the legislature was passed securing to married women the property they may own at the time of their marriage. It is-contended that the act in question cannot affect the rights of the husband to the property which the wife owns at the time of the marriage, nor to that which she may acquire afterwards, if the marriage took place before the passage of the act, because the husband’s right to the property is to be determined by the law as it stood at the time the marriage was consummated. This is an important question, but we shall not decide nor discuss it in disposing of this case, but shall dispose of it upon other grounds. The act of the legislature upon which the-plaintiffs in--error rely, was passed on the first day of February, A. D. 1850. Sess. .L. 1850, ch. 44. The third section provides that any married female may receive real and personal property from any one except her husband, and hold the same to her sole: and separate use, and that she may convey and devise the same in the same manner and with like effect as if she were unmarried, and that the same shall not be subject to the disposal of the husband, nor- be liable for his debts, &c. This case has been argued on the part of the counsel for the plaintiff in error, as though the act of the legislature above cited clothed married women with the same power, and imposed upon them the same responsibility, in respect to maintaining and defending actions at law, as belonged to them when sole. We think this is a very erroneous view of the act of the legislature in question. A careful consideration of it has satisfied us that the principal object which the legislature had in view, was to prevent the property of the wife from being liable for the debts of the husband, and from being sold or controlled by him. To accomplish these objects, the legislature provided that the property which the wife owned at the time of her marriage should remain • her own, and were careful to add that it should not be under the control of the husband, nor liable for his debts.

But it does not appear to have been the intention that she should have unlimited power to engage in trade, and to contract • debts irrespective.of the property which belonged to her. She may convey and devise her property in the same manner and with like effect as though she were sole, and she can acquire a title to property in any of the ways pointed out in the statute.

It was urged by the counsel for the plaintiff in error, that because the statute provided that she .may receive property by grant, she must be liable to an action for the price of the property thus acquired, as the term “ grant,” as used in the statute, implies a contract. We do not think this consequence follows, even admitting that the legislature used the term in its strict technical sense. We have seen that she has unlimited power to convey her property. This implies the power to receive the price for which the property is sold, and to receive it in money or other property . It implies also the power to purchase property, because when the property is sold and the price is received in money, it may be necessary to re-invest it in other property. She has also the power to bring suits, either in her own name, or jointly with her husband, when the subject matter • of the suit is her separate property. Norval vs. Rice et al., 2 Wis Rep. 22. All these powers she has, because they are all necessary to the full enjoyment of the right which the legislature have conferred upon her. But it is not necessary to the full en-ioyment of this right, that she should have the power to contract debts in such a manner as to become liable to a personal action.

The legislature do not appear to have intended that she should have the power to engage in trade, except so far as may be necessary to manage the property which she may own. An unlimited power to sue and be sued, and to engage in trade and business on her own account possessed by the wife, would, if exercised, be destructive of domestic ties and entirely inconsistent with conjugal obligations. We must therefore hold that a personal action cannot be maintained under our statute against a married woman. Howe vs. Wildes, 34 Maine Rep. 266.

It was further contended by the plaintiff in error, that the coverture of the married women who are defendants, should have been pleaded in abatement. We cannot think this necessary when that fact is set out in the declaration. If it had taken place since the making of the contract sued on, and had been set up by the defendants to defeat the action, the authorities cited by the jdaintiff in error would have been apjdicable: but surely, when the plaintiff himself sets up a fact in his declaration which would defeat the action if pleaded in abatement, advantage may be taken of it by demurrer. But when the coverture of the defendant exists at the time of making the contract which is the foundation of the suit, the fact may be pleaded in bar, for the reason that the defendant cannot give the plaintiff a better writ. 1 Chit. Pl. (Philad, ed.) 484; Steer vs. Steer, 14 Serg. & R. 379 ; Gresser vs. Eckart, 1 Binney R. 575.

The plaintiff in error further contends, that admitting the co-verture of the two female defendants, constitutes a good defence as to them, still the judgment in this case is erroneous, because all of the defendants joined in the demurrer, and it is contended that where there are several defendants, and they all join in a plea which would be good if pleaded by a part of them only, it is bad as to the whole. We think the principle contended for has no application to this case. We have seen that the promise of the two female defendants was void for all the purposes of this suit by reason of their coverture: they therefore should not have been made defendants.

The plaintiff’s case shows that he has made too many defendants, and in all cases such a misjoinder can be taken advantage of under the plea of the general issue, or when it appears in the pleadings, by a demurrer, by a motion in arrest of judgment or by a writ of error. 1 Chitt. Pl. 50.

The plaintiff in error also relies upon our statute (Rev. Stat. ch. 100, § 18), which provides that in all cases where the action is founded upon contract, the plaintiff may be allowed at any time before the cause is committed to the jury, to discontinue as against any of the defendants, and take judgment against the others, in the same manner as though the action had been originally. brought against them alone. This section of the statute gives to a plaintiff a privilege of which the plaintiff in this case does not appear to have availed himself. If he had offered to comply with the statute, and the judge had refused to grant him the privilege which the statute gives him, we have no doubt but such refusal would have been error. But the plaintiff made no such offer; he chose to continue his action as he had originally commenced it, and cannot now set up a right under the statute.

Judgment affirmed.