4 Wash. 263 | Wash. | 1892
Lead Opinion
The opinion of the court was delivered by
These were four cases the trials of which were consolidated. In two of the cases the theory of the
“Sec 2396. Every married person shall hereafter have the same right and liberty to acquire, hold, enjoy and dispose of every species of property, and to sue and be sued, as if he or she were unmarried.”
“Sec. 2398. All laws which impose or recognize civil disabilities upon a wife, which are not imposed or recognized as existing as to the husband, are hereby abolished, and for any unjust usurpation of her natural or property rights, she shall have the same right to appeal in her own individual name, to the courts of law or equity for redress and protection that the husband has.”
“Sec. 2400. The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise or inheritance, with the rents, issues and profits thereof, shall not be subject to the debts or contracts of her husband, and she may manage, lease, sell, convey, encumber or devise by will such property to the same extent and in the same manner that her husband can property belonging to him.”
*265 “ Sec. 2401. Should either husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and to the same extent as if they .were unmarried.”
“Sec. 2406. Contracts may be made by a wife and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she. were unmarried.”
Prior to the act of 1881, but for the acts commencing in 1869, the common law would have regulated the property rights of husband and wife. It did then and still does regulate them excepting so far as the statute has directed otherwise; and notwithstanding that this act provides in § 2417 that the “rule of common law that statutes in derogation thereof are to be strictly construed has no application to this act,” it is not to be supposed that the legislature intended or proposed to extend the scope of the act beyond the language used further than the .implications naturally flowing therefrom. At the common law a wife could not be a partner in business with anyone, because partnership is based on a contract, as to which she was under a disability, and yet in equity she had always been permitted to enforce contracts made for her benefit, even with her husband, and her claim against him as her debtor had always been sustained. Story, Eq. Jur., §§ 1372, 1373; Valensin v. Valensin, 28 Fed. Rep. 599; Clark v. Hezekiah, 24 Fed. Rep. 663; Huber v. Huber’s Admr., 10 Ohio, 372. She could havea separate estate,meaning an equitable estate held by a third person in trust for her. This estate she could charge in equity, but not at law. Judgments upon her debts went not against her person, when allowed at law, but were allowed as equitable burdens upon her estate or personal property in possession at the time of the marriage and that acquired afterward; her chosesin action when
In this opinion we shall not discuss the question how large her power is, but confine ourselves to the single matter before us. Counsel for respondents contend that, as it is the evident purpose of these provisions to emancipate the wife from the control of the husband, and to enfranchise her with the power, denied to her under the common law, to acquire, hold, enjoy and dispose of property, and do business on her own account as freely as he can, or even more freely than he can, under the same act, it must follow that she can enter into a contract of partnership in all the ways, and with all the liabilities that her husband can, and that unless she is permitted and held to be able to enter into the same contracts with him that she can with others, she is deprived of the full measure of liberty which
In Massachusetts, the married woman’s property acts, which existed until 1874, when the legislature expressly forbade husband and wife to contract, provided: “Any woman may, while married, bargain, sell and convey her real and personal property, which may be her sole and separate property, or which may hereafter come to her by descent, devise, bequest or gift of any person, except
“Their legal object is,to enable married women to acquire, possess and manage property, without the intervention of a trustee, free from the interference or control, and without liability for the debts, of their husbands. They are in derogation of the common law, and certainly are not to be extended by construction. And we cannot perceive in them any intention to confer upon a married woman the power to make any contract with her husband, or to convey to him any property, or receive any conveyance from him. The power to form a copartnership includes the power to create a community of property, with a joint power of disposal and a mutual liability for the contracts and acts of all the partners. To enter into a partnership in business with her husband would subject her property to his control in a manner hardly consistent with the separation which it is the purpose of the statute to secure, and might subject her to an indefinite liability for his engagements. The property invested in such an enterprise would cease to be her “sole and separate” property. The power to arrange the terms of such a contract would open a wide door to fraud in relation to the property of the husband.*269 If she could contract with her husband, it would seem to follow that she could sue him and be sued by him. How such suits could he conducted, with the incidents in respect to discovery, the right of parties to testify, and to call the opposite party as a witness, without interfering with the rule as to private communicatioijs between the husband and wife, it is not easy to perceive; and the consequences which would follow in respect to process for the enforcement of rights fixed by a judgment, arrest, imprisonment, charges of fraud, proceedings in invitvm under the insolvent laws, and the like, are not of a character to be readily reconciled with the marital relation. We cannot suppose that an alteration in the law involving such momentous results, and a change so radical, could have been contemplated by the legislature, without a much more direct and clear manifestation of its will.”
To the same effect is the construction of the similar statute by the supreme court of the State of Maine, Smith v. Gorman, 41 Me. 405; McKeen v. Frost, 46 Me. 239. In Michigan, Howell’s Stat., § 6295, provides that the separate property and estate of a married woman “may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed to her, in the same manner and with the like effect as if she were unmarried.” And § 6297 provides that “actions may be brought by and against her in relation to her sole property, in the same manner as if she were unmarried.” It is true that these provisions in the Michigan statute (and those of several other states) speak particularly only of her separate estate, but her separate estate is by § 6295 expressly defined to be the same as thaf which is equally her separate property in this state; but if she be thus enabled to contract with absolute freedom in reference to her separate estate, then, according to the logic of respondent’s argument, her freedom in that respect would be unlawfully curtailed by holding that she could not contract with reference thereto with her husband. Yet the supreme court of Michigan, in Artman v. Ferguson, 73 Mich. 146 (16
“It is the purpose of these statutes to secure to a married woman the right to acquire and hold property separate from her husband, and free from his influence and control, and if she might enter into a business partnership with her husband it would subject her property to his control in a manner whollyinconsistent with the separation which it is the purpose of the statute to secure, and might subject her to an indefinite liability for his engagements. A contract of partnership with her husband is not included within the power granted by our statute to married women. This doctrine was laid down in Bassett v. Shepardson, 52 Mich. 3, and we see no reason for departing from it. The important and sacred relations between man and wife, which lie at the very foundation of civilized society, are not to be disturbed and destroyed by contentions whch may arise from such a community of property and a joint power of disposal and a mutual liability for the contracts and obligations of each other.”
In Indiana, under the third section of the act of March 25, 1879, it was provided that a married woman might enter into any contract in reference to her separate personal estate, trade, business, labor or services, and the management and improvement of her separate real property, the same as if she were sole, and her separate estate, real and personal, should beheld liable and on execution sold. But in Haas v. Shaw, 91 Ind. 384, 46 Am. Rep. 607, and in Scarlett v. Snodgrass, 92 Ind. 262, it was distinctly held that she could not bind herself by a contract of copartnership with her husband. These citations from eminent courts are sustained in Schouler’s Husband and Wife, § 317, and 2 Bish. Married Women, §435.
Opposed to these adjudications counsel cites us to a line of authorities of which May v. May, 9 Neb. 31, 31 Am.
“Even under the old system of practice, and before the beneficent legislation defining the rights of married women herein quoted, this could have been done by resorting to the circuity of proceeding in the name of a trustee and a court of equity. But now not only is the administration oflawand equity vested in the one court, but all forms of procedure which heretofore distinguished legal and equitable suits are abolished, and the need of the intervention of a trustee is done away with by the statute which provides that ‘every action must be prosecuted in the name of the real party in interest.’ ”
But, notwithstanding these cases, and the doctrine established by them, no case is cited, and we have not been able to find one in which either husband or wife has been permitted either at law or in equity to enforce a purely ex-ecutory contract against the other, and in that lies the kernel of this controversy, becase such a contract must be enforcible by both parties, and at its beginning it is entirely executory. The terms of the partnership may be that it shall continue for a certain length of time, that certain capital shall be invested, that the services of the parties to the contract shall be devoted to the business of the
“The law recognizes a partnership between the husband and wife as to the property acquired during marriage, and which exists until expressly renounced in the manner prescribed. To this community or partnership belongs: First, All the property, of whatever nature, which the spouses acquire by their own labor and industry. Second, The fruits and income of the individual property of the husband and wife. Third, Whatever the husband gains by the exerciseof a profession or office. Fourth, The gains from the money of the spouses, although the capital is the separate property of one of them.”
It is scarcely necessary to say that because the relation of husband and wife as to their common property is likened to a partnership, the reason for the similitude is totally wanting when their separate property is concerned.
But the respondent produces two decisions of New York and Mississippi, respectively, which expressly hold that a husband and wife may be partners. Suau v. Caffe, 122 N. Y. 308; Toof v. Brewer (Miss., Feb. 20, 1888), 3 South Rep. 571. The statutes of New York governing the former case were almost identical with those of Massachusetts above quoted. Husband and wife filed a certificate by which they assumed to form a limited partnership under the firm name of “George Caffe;” the husband was the general and the wife the special partner, she contributing
“Upon principle and authority, we think that when a husband and wife assume to carry on a business as partners, and contract debts in the course of it, the wife cannot escape liability on the ground of coverture.”
This, as is seen by the facts above stated, was an ex-tréme case in which the wife had by a solemn instrument placed upon file among public records, shown her intention of assuming a partnership relation with her husband, and contributing to the firm large sums of money. Whether or not the firm was insolvent is not disclosed; all that appears is that she was retained as a party to the action. But we find that of the seven judges of the New York court of appeals but four joined in the opinion while three dissent on the very point in question. Haight, J., in his dissenting opinion, reviews the course of decision in the State of New York, as well as in other states, and comes to the conclusion which is, we think, unassailable, that the majority opinion was wrong. The decision in this case is to us a curious one, inasmuch as we find the same court, only one year previous, in the case of Hendricks v. Isaacs, 117 N. Y. 411 (15 Am. St. Rep. 524), holding by a unanimous court that under these same statutes a husband and wife could not contract with each other at all. Toof v. Brewer was a controversy which was controlled by the statutes of Arkansas, which are again almost exact duplicates of those of Massachusetts. The court after alluding to Abbott v. Jackson, 43 Ark. 212, in which it was held th at a married woman could become a partner as a sole trader with a third person other than her husband, and would as to her property be bound by all the contracts of the firm as effectually and to the same extent as if she were a man, discusses cases in Massachusetts, New York and other states, and comes to the conclusion that a
But in our statutes there are one or two provisions which we think make this position clearer than it is, perhaps, in any of the others. Sec. 2397 substantially makes each of them, as to all transactions between them, a trustee for the other. The burden of proof, as between them, is upon the party asserting the good faith. Persons who are free to contract with each other are not subject to such a rule. They stand at arms’length, and unless there is actual fraud the law gives no relief. Again, it would seem that if husband and wife are at liberty to contract with each other with perfect freedom, as strangers, the provisions of & 2416
The case at bar is, perhaps, as strong an example as experience could produce of the evil effects of such a construction of this statute as is contended for by respondents. The wife held certain real estate which she claims is her eparate property — it is all she has. The husband engaged in a mercantile business in a building built by her upon her land, and painted over the door a sign, “J. P-Hayden & Co.” He went to Seattle to buy goods for his stock, and his wife went with. him. In a certain store where he was about to make some purchases he was asked who constituted the firm. His answer was: “My wife is the only partner I have.” She sat within a few feet of where this was said, and the witness who testified to the statement of Mr. Hayden thought she might have heard what he said. Again, a traveling agent for a firm in San Francisco, who sought to sell Hayden goods, when in the store at Fairhaven, asked a question similar to the one asked in Seattle, and received a similar answer; and on this occasion Mrs. Hayden was sitting at a desk in the view of the two men, and again the testimony was that she might have heard what her husband said. The jury found as a special verdict that these were the only two men to whom any such statement was made, although others were testified to. Yet upon this testimony, and some other of as slight moment, and because, as it is said, the wife remained
It is clear that to sustain such a judgment would be to render the estate of every married woman wholly unsafe, and all but destroy the most beneficial purpose designed to be subserved by the statute as we understand it.
Judgment reversed, and cause dismissed.
Anders, O. J., and Hoyt, J., concur.
Concurrence Opinion
(concurring). — I concur in holding that a husband and wife cannot enter into a partnership with each other to carry on a business. This is the law in most of the states, and all arguments advanced in favor of such a holding elsewhere, in so far as their laws relating to the removal of the disabilities of married women are like our own, derive much greater force in a state where community property laws prevail as here. Our statutes recognize but two kinds of property which can be held or owned by married persons — separate property and community property. The statutes point out how this property may be acquired and define what it is, according to the manner and time in which it is acquired. The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise or inheritance, with the rents, issues and profits thereof, is her separate property, and the same is true with regard to like property owned by the husband. Section 1399, Gen. Stat. (former § 2409), provides that all property not acquired as prescribed in any one of the ways mentioned, which is acquired after '
Sec. 1401, Gen. Stat., provides that “nothing contained in any of the provisions of this chapter, or in any law of this state, shall prevent the husband and wife from jointly entering into any agreement concerning the status, or disposition of the whole or any portion of the community property then owned by them, or afterwards to be acquired, to take effect upon the death of either.” This seems to me to clearly preclude the idea of their entering into any. such agreement, affecting their property interests, to take effect prior to the dissolution of the community, except as expressly provided otherwise. Sec. 1443, Gen. Stat., authorizes the direct conveyance, by one to the other, of his or her interest in all or any portion of their community real property, which thereby becomes the separate property of the grantee, but it is apparent that such a deed to be effectual must convey the entire interest of the grantor in the property, designated in the deed, from the- one spouse to the other. No lesser or partial interest of the grantor could be conveyed in any event, because this would have the effect of destroying its community character, and leave it neither separate or community, which would effect a result the law does not contemplate. If a husband and wife can become partners in business they can form the same kind of a partnership that other persons can, and enter into an agreement whereby one could take a small interest in the business and the profits thereof, and the
Sec. 1408 of the Gen. Stat. (§ 2396 of the 1881 Code) provides that every married person shall hereafter have the same right and liberty to acquire, hold, enjoy and dispose of every species of property, and to sue and be sued as if he or she were unmarried, and § 1410 (§ 2406 of the 1881 Code) provides that contracts may be made by a wife
Our laws cannot, in accordance with recognized rules of construction, beheld to authorize the husband and wife to enter into a partnership with each other for the purpose of trade or business, although it may be possible they might form some particular kind of an agreement for such a purpose rvhich might not conflict with their rights of property as defined by the statutes. This is very doubtful, however, and when considered in all its bearings with the rights, duties and liabilities of partners to each other and to creditors, it is evident that it is not the intent of the law to confer any such authority upon them. The effect that such an arrangement might have or must necessarily have upon their property rights as classified is the strongest argument that can be advanced against the position of the respondents, as it would destroy the distinction between the classes of property they may own as declared by the statutes.
Beg. 1444, Gen. Stab, provides that a husband or wife may appoint the other attorney in fact with full power to sell, convey and encumber his or her separate estate, both real and personal, and § 1446 makes similar provision with regard to their community property, and with § 1443,
Dissenting Opinion
(dissenting). — I dissent. It seems to me that the decision in' this case is another instance (too common in the history of the-courts of the United States) of the judicial repeal of a statute. It is not only a fundamental principle of our government, well understood and universally recognized, that the legislative and judicial departments of the government must be kept distinct and separate, but the first warning note sounded by all writers on statutory interpretation is that when the language of a statute is plain and unambiguous, the duty of interpretation by the court does not arise. Sec. 2396 provides that “every married person shall hereafter have the same right and liberty to acquire, hold, enjoy and dispose of every species of property, and to sue and be sued, as if he or she were unmarried.” There seems to be nothing ambiguous or doubtful in the language or provisions of this statute, and, applying any and every known rule of interpretation to it, we must conclude that there is no room for construction and that the only duty of the court is to declare it the
“When, indeed, the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise, and ‘those incidental rules which are mere aids, to be invoked when the meaning is clouded, are not to be regarded.’ It is not allowable, says Yattel, to interpret what has no need of interpretation. Absoluta sententia expositore non eget. Such language best declares, without more, the intention of the lawgiver, and is decisive of it. The legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. It is, therefore, only in the construction of statutes whose terms give rise to some ambiguity, or whose grammatical construction is doubtful, that courts can exercise the power of controlling the*282 language in order to give effect to what they suppose to have been the real intention of the lawmakers. Where the words of a statute are plainly expressive of an intent, not rendered dubious by the context, the interpretation must conform to and carry out that intent. It matters not in such a case what the consequences may be. ‘It has, therefore, been distinctly stated from early times down to the present day, that judges are not to mould the language of statutes in order to meet an alleged convenience or an alleged equity; are not to be influenced by any notions of hardship, or of what in their view is right and reasonable or is prejudicial to society; are not to alter clear words, though the legislature may not have contemplated the consequences of using them; are not to tamper with words for the purpose of giving them a construction which is “supposed to be more consonant with j ustice” than their ordinary meaning.’ Where, by the use of clear and unequivocal language, capable of only one meaning, anything is enacted by the legislature, it must be enforced, even though it be absurd or mischievous. If the words go beyond what was probably the intention, effect must nevertheless be given to them. Th ey cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the intention conveyed may be, it must receive its full effect. Indeed, it is said that it is only when all other means of ascertaining the legislative intent fail, that courts may look to the effects of a law in order to influence their construction of it. But, whilst it may be conceded that, where its provisions are ambiguous and the legislative intent is doubtful, the effect of several possible constructions may be looked at, in order to determine the choice, it is very certain, that when once the intention is plain, it is not the province of a court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands according to the real sense of the words.”
And yet the majority, by an argument based on the supposed hardships which would be imposed upon married women, have come to the conclusion that the legislature
As showing the danger of leaving the plain provisions of the statutory law, I note the fact that the majority recite at length the provisions of the common law, and draw deductions from its analogies, when the act in question, to avoid the very thing which the court now insists on doing, provides especially in § 2417 that the “rule of common law that statutes in derogation thereof are to be strictly construed has no application to this chapter. This chapter establishes the law of this territory respecting the subject to which it relates, and its provisions and all proceedings under it shall be liberally construed with a view to effect its object.” The legislature evidently attempted to emancipate this law from the rule of construction now insisted upon by the court; and the plain rule of construction pro
I am unable to see in what way the enactments of § 2397 and § 2416 sustain the theory of the majority. It is perfectly competent for the law to provide who shall be subject to the burden of proof in any given transaction, nor is it by any means a new provision of the -law. It is especially a wise provision in this instance and can in no way, that I can perceive, throw any light on the subject discussed.
So far as § 2416 is. concerned, there is the very best of reasons why transactions concerning community property should be attended with solemnity and certainty; both parties have an interest in such property, and delicate relations exist which do not exist at all concerning the separate property of either of the spouses. The separate' property is more independent, and the fact that the law imposes these solemn protections upon community property and not upon separate property would rather strengthen the idea that the use of separate property was entirely unrestricted. The fact is that for many years the law, in obedience to popular demand, growing out of feudal education, stood in loco parentis to woman; she was regarded as not being able to transact business, and had to act .under a trustee or guardian. Advancing thought has
