Bailey v. Pearson

| Superior Court of New Hampshire | Jul 15, 1854

Eastman, J.

By the third section of chapter 149 of the Revised Statutes, it is provided in general terms, that “ whenever any married woman shall be entitled to hold property in her own right and to her separate use, she may make contracts, may sue and be sued in her own name, and may dispose of said property by will, or otherwise, as if she were sole and unmarried; and if she shall decease intestate, her husband shall be excluded from any share in her said estate, and such estate shall be administered and inherited in the same manner as if she were sole and unmarried.”

This section was passed in connection with others, which provided for the holding of property by married women who should be deserted by their husbands, and by the wives of aliens, and citizens of other states residing in this State separate from their husbands.

By the act of 1846, in relation to married women, laws of 1846, chapter 327, (Comp. Stat. ch. 158, §§ 12 to 18 inclusive,) provision is made for ante-nuptial contracts between the parties, by which the wife, after the marriage, may hold either the whole or any designated part of any interest in the real or personal estate or rights of action of which she was seized or possessed at the time of her marriage, to her sole and separate use, free from the control and interference of her husband. It is also provided that any devise, conveyance or bequest of property, real, personal, or mixed, may be made to any married woman, to be held by her without the intervention of a trustee, to her sole and separate use, free from the interference or control of her husband; and that she shall hold, possess and enjoy the same accordingly.

The fourth section of the act, (section 15 of the Compiled Statutes,) is as follows: “ Married women in the cases aforesaid shall, in respect to all such property, have the same rights and possess and be entitled to the same remedies, in her own name, at law and in equity, and be liable to be sued at law and in equity, upon any contract by them made, or any wrong by them done, in respect to such property. And also upon any contract by them made, or wrongs by them done, before their marriage, in the same manner, and with the same effect, as if they were unmarried.”

Under these provisions, the question is presented by this case whether a married woman, holding property in the manner set forth in the act of-1846, can contract and be liable for debts generally, so as to subject her property to their payment, or whether the contracts which she may make, and which can be enforced, must be confined and have respect to the property itself?

The plaintiff contends that the general provisions in section 3, chapter 149 of the Revised Statutes, taken in connection with the act of 1846, must make her liable for all debts contracted during coverture, so far as her property, held separate from her husband, may be sufficient to pay them ; while the position of the defendant is, that the phrase “ in respect to such property,” in the fourth section of the act of 1846, limits the powers and liabilities of the feme covert to contracts directly applicable to the property itself, such as selling, leasing, mortgaging, cultivating and improving the same ; and so where the section speaks of wrongs clone, it refers to frauds in the sale of such property, erecting dams, producing flowage, and creating other nuisances with the property itself.

We think that the decision of the question depends upon the construction to be put upon the phrase “ in respect to such property.” The section is peculiar and not altogether clear, and there is much in the argument of the plaintiff that might lead to the conclusion that the feme covert may make contracts generally, to the extent of rendering liable the property held under the provisions of the act. But after considerable consultation, our conclusion is that the true construction of the act must be that contended for by the defendant.

The provisions in the third section of chapter 149 of the Revised Statutes are not applicable to the act of 1846. Those provisions have reference to married women who live separate from their husbands, and who have been deserted by them, and to the other classes of married women spoken of in that chapter. The provisions of the Revised Statutes were intended to reach all cases in which married women could then hold separate property. The subsequent act of 1846, made additional provisions in regard to the rights of married women, and empowered them to hold property as therein specified, during the coverture, and while living with their husbands. The object of this act was to protect the wife and her interests, not to extend her liabilities. So far as the property itself is concerned, she may make contracts in regard to the same, which may act upon it, but cannot be liable generally for all contracts that she might assume to make during coverture. The law was not intended to be changed, except to the extent that the wife may hold property as set forth in the act, and may make contracts and incur liabilities connected with and growing out of that property, but not further. Her marital incapacities continue as before, except as to this property, and the acts and contracts connected therewith. The property held under the act of 1846, is liable, then, for all contracts made by the feme covert in regard to the property itself, and for all wrongs committed with it; and it is also liable, under the latter clause of the fourth section, for all debts and causes of action existing against her before her marriage, while sole.

The proviso in the seventh section, empowering the husband, after the decease of the wife, to hold such personal property, and all the interests of the wife in any real estate, saving his estate by the curtesy, “ subject to the payment of all debts incurred by her, either before or after the marriage,” does not necessarily conflict with the construction which we have put upon the act. The proviso undoubtedly includes the debts incurred with reference to the property, such as repairs to the buildings held by her, and all contracts which she may legally make relating thereto ; and also debts existing before the marriage, as specified in the latter clause of the fourth section. Whether it was intended to cover any other class of debts is not necessary here to inquire, as the investigation would at once suggest the question, as to what debts, independent of these statutes, a feme covert could incur.

Entertaining these views, there must be, according to the provisions of the case,

Judgment for the defendant.