105 Ky. 669 | Ky. Ct. App. | 1899
delivered the opinion op the court.
This is an action by appellant to recover of appellee the amount of a note, dated January 25, 1890, executed at Big Stone Gap Va.., by appellant, for $533.38, payable at the Bank of Big Stone Gap, Va., and due in twenty months after date. It is alleged in the petition that the note is a part of the purchase money for some lots in the town of Big Stone Gap, which were conveyed to appellant on the date of the note; that on February 20, 1890, appellant conveyed the property to J. M. Dalton, and as a part of the consideration for the conveyance, J. M. Dalton assumed the payment-of this note; that on December 1, 1890, J. V. Dalton conveyed the property to appellee,
Without considering the first', objection, we will take up the second, which seems to us decisive of the controversy. If appellant has any cause of action by reason of the contract made by appellee with her husband, J. M. Dalton, it is clear that she can have no better right than
How far the courts of a State, where the common law rules of coverture prevail, will enforce personally against a married woman a contract governed by the laws of another State, where she is allowed to contract as a feme sole, is a question on which the courts are not agreed. In Milliken v. Pratt, 125 Mass., 374, [28 Am. Dec., 241], such a contract was sustained, on the ground that the common-law rule of the total incapacity of a married woman to contract had been changed by the statute in Massachusetts; but it was said by the court that where the incapacity of a married woman is the settled policy of the State, for the protection of its own citizens, it could not be held by the courts of that State to yield to the law of another State, in which she might undertake to contract. In the subsequent case of Armstrong v. Best, 112 N. C., 59 [34 Am. S. R., 473; 25 L. R. A., 188; 17 S. E., 14], the precise question suggested in Milliken v. Pratt came before the court, married women in North Garolina standing under the law just as in Kentucky. The court refused to enforce the contract against the married woman, on the ground that 'the common law disability of a feme covert still obtained, and that she could not charge her property, except as provided by law.
Among other things, the court said: “In Johnston v. Gawtry, 11 Mo. App., 322, it was held that where a married woman, having a separate estate in land in Missouri, makes a contract in another State, her capacity to make the contract and its validity
Under the laws of Kentucky*at the time of this transaction, the appellee, Mrs. Dalton, was under the power of her husband. ' She had no separate legal existence. All her personal property vested in him upon their marriage. He was entitled to the rents on her real estate, and she could not charge it, except for necessaries. Her husband was constituted by law her protector, and no contract between him and her could be enforced against her. In Scarborough v. Watkins, 9 B. Mon., 545, [50 Am. Dec., 528], this court said: “It is a maxim-.of the common law that the husband and wife can not make a valid contract with each other during the coverture. The reason generally assigned is that', the wife having lost her legal unity, she and her husband are one person, in legal con
In Orr v. Orr, 8 Bush, 159, the husband had conveyed land to the wife upon her agreement to pay certain money. She failed to pay it, and this was relied on to show a failure of consideration; but it was held that the promise of the wife to the husband imposed no legal obligation, and her failure to comply with the promise did not affect ,the deed. As J. M. Dalton and wife, at the time of the transaction in contest, were domiciled in this State, had been married here, and had always lived here, and he had control not only of the wife’s person, but possession of all her property, with the power to control her actions, it seems clear that the courts of this State should not enforce any contract made by her with him during this relationship. This transaction is clearly contrary to the public policy of this State, as defined in the statutes in force when, it was made, and, if it could be enforced, the door might be open for grave abuses. The wife was entitled, not only to the protection of the husband, but to his counsel and guidance in the management of her affairs, and she had learned that it was her duty to submit to him. If, when the law had imposed this duty upon her, it shall allow him to make contracts with her to pay his debts, and enforce these contracts against her, because the debt is payable in another State, it will defeat the purposes of the statute framed to protect married women, and prevent their property being wasted.
Appeliani was no party to this contract. We do not
The judgment is therefore affirmed.