5 Neb. 242 | Neb. | 1876
The plaintiff in error was sued upon a promissory note, dated June 26, 1871. The main facts disclosed by the testimony substantially show, that the plaintiff had deposits of money in her own name, and to her own account and credit, with J. IT. Rogers & Co., bankers of Cheyenne, W. T. The note was given to settle the amount overdrawn on this account by plaintiff; and J. H. Rogers indorsed, sold, and delivered, the note to the defendant in error before it became due. A large portion of these deposits were made by the husband of the plaintiff; but he says, that they were made for her separate use, on her account, and to her credit. J. H. Rogers & Co. made some collections for the plaintiff, issuing out of her separate property, and placed the same to her credit in the bank account, and, also, paid some taxes for her, and charged the same to her account with the bank. The plaintiff owned, in her own right as her separate property, considerable estate in Cheyenne, W. T., and also in Omaha, and .Douglas county, Nebraska. The money drawn from the bank upon her checks was mostly, if not all, expended by her in building a house on her lands, costing six thousand dollars, in improving her property,
Now, the main question, presented for consideration by the pleadings and exceptions taken in the case, is, that the plaintiff is a married woman, and, therefore, under the facts in the case, a personal judgment at law cannot be sustained against, her upon the note. It seems very clear from the testimony in the case, that the deposits made by the husband were for the separate use of the plaintiff, and became her separate property, and were controlled, drawn out of the bank, and disposed of by her for her own use. No other person claimed any right to, or ownership over the fund; and, therefore, the bank held the money in trust for the plaintiff, and subject to be paid out only upon her orders. The bank account was, therefore, exclusively her own separate business; and by overdrawing her account she incurred a debt, which it seems was with reference to, and upon the faith and credit of, her separate estate, and the rule of the common law is, that, in regard to such separate property, she is considered as a feme sole. Perry on Trusts, Sec., 32. Hill on Trusts, 121.
But the settled doctrine of the common law is, that the general engagements of a married woman, in respect to her separate property, could only be enforced in equity; and this, not upon the ground that she could make valid contracts in law or equity, but because her honest engagements ought to be answered; and, hence it is said, that “intimately connected with the right of a married woman to dispose of her separate property, is the right or power of such feme covert to contract debts and charge her separate estate, either by specific agreements in relation to it, or by general engagements; * * * and her separate estate will be bound to make good her contracts, and it may be reached by proper proceedings, though she is not personally liable.” Perry on Trusts,
Our legislative act, “ relating to the rights of married women,” approved, March 1, 1871, provides that, “a married woman, while the marriage relation exists, may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same, in the same manner, to the same extent, and with like effect, as a married man may, in relation to his real and
Judgment affirmed.