8 Kan. 525 | Kan. | 1871
This was an ordinary action on a promissory note brought by Frank R. Boyle, plaintiff below, against Sarah P. Peering, defendant. The defendant answered to the plaintiff’s petition as follows:
“ Defendant further avers that said note was executed and signed by her while she was the lawful wife of one George M. Peering, and that said George M. Peering was at the time of the execution of said note indebted to said plaintiff F. R. Poyle, and said note was given and executed by said defendant in payment of and satisfaction of the sole, separate, and individual debt of said George M. Peering, and without any benefit or consideration whatever moving to said defendant.”
The plaintiff demurred to this answer, on the ground that it did not state facts sufficient to constitute a defense to the petition. The court below sustained the demurrer, and the defendant as plaintiff in error now brings the case to this court.
That such a contract or promise as the one embodied in the said note, would be void at common law, we suppose will not be questioned; or that an action at common law could be maintained upon said note, we suppose will not be claimed. But these'are not questions involved in this case; and therefore all the authorities that may be referred to in support of these propositions are wholly inapplicable to the case at bar. The real questions to be considered in "this case are, whether said note would be held valid in a suit in equity to enforce its payment, or whether it is valid under our statutes. If considered valid in either case the plaintiff would undoubtedly have the right to recover in this action. If it be said however that this action is in form an ordinary action at law, we would answer that while that is not strictly true, yet it makes no difference, provided facts sufficient are stated to show a good cause of action as provided by our code. The plaintiff’s petition was drawn under § 123 of the code, and is sufficient under that section. Under such a petition if the plaintiff has any cause of action on the note, either in law or equity, he may recover;
Could the plaintiff recover, in equity, on said note? It has been unquestionably settled in England, and pretty well settled in this country, that a married woman is regarded in equity, as to her separate property, as a femme sole, and her separate property is charged with all her debts and obligations without any express intention on her part so to charge it. For instance, whenever a married woman gives a promissory note it will be presumed in equity that she intends to charge her separate estate unless the contrary be shown. The authorities are very numerous upon this subject, and most of them may be found cited in Mr. Bishop’s work on the law of married women. (1 Bishop on Married Women — English authorities, §§ 848 to 858; American authorities, §§ 864 to 879.) The doctrine as above stated was hardly questioned in this country until the decision of the case of Yale v. Dederer, in New York, in 1860. That ease was first decided by the Supreme Court of New York in 1855: 21 Barb., 286. It was then decided in accordance with what was at that time generally if not universally understood to be the law both in England and in this country. Afterwards the case was taken to the Court of Appeals, and reversed by a divided court; Denio and Rossevelt, JJ., dissented, and Strong, J., expressed no opinion: 18 N. Y., 265. Afterwards it was again decided by the supreme court, (31 Barb., 525,) and again (in 1860) taken to the Court of Appeals and reversed: 22 N. Y., 450. At the time of this last decision by the Court of Appeals that court decided that where a married woman
When a married woman executes a promissory note, she of course means something. She either means to charge her separate estate, or else she means to cheat and defraud the person to whom she gives the note. Is it not more charitable to suppose she means the former? But suppose she means the latter, will ooivrts of eqwity hear her plead her own guilt and
The true doctrine seems to be this: Whenever a married woman enters into a contract (not for necessaries) for the payment of money, she does not bind her husband nor her husband’s property, nor herself personally; but she binds her own property which she holds separate from her husband.
It seems scarcely necessary for us to say anything with reference to our own statutes concerning the rights of married women, except to say that they do not change the rules of equity so as to affect the decision of this case. But still it may not be out of place to offer a few suggestions concerning them. Section 2 of ch. 62, Gen. Stat., 563, reads as follows:
“ Sec. 2. A married woman, while the marriage relation subsists, 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 personal property.”
Other sections provide that a woman may sue and be sued, as if she were sole, may carry on trade and business, perform labor or service, etc., on her sole and separate account; but' § 2 is the. one more directly involved in the consideration of this case; and in fact that portion of said section which provides that a married woman “ may enter into any contract with reference to ” her separate estate “ in the same manner, to the same extent and with like effect as a married man may in relation to his real and personal property,” is about all that we need consider. It is claimed that the note sued on is not
In every contract it must be presumed that each party agrees that all his property, except such as may be exempt by law, or such as may be exempted by the terms of the contract itself, shall be liable for the fulfillment of the contract. Hence any general exemption law, exempting all a debtor’s property, passed after a contract has been made, would be void, as tending to impair the obligation of the contract. This is the generally accepted doctrine, found however only in the elementary works, and in the dicta of courts, and not in any judicial decision, as no state has yet passed any law exeurpting all the debtor’s property. It has been held that where only a portion of the debtor’s property was exempted from execution the law exempting the same was void: Forsyth v. Marbury, Charlton, (Geo.,) 324; Quackenbush v. Danks, 1 Denio, 128; Danks v. Quackenbush, 3 Denio, 594; Quackenbush v. Danks, 1 N. Y., 129. But now it seems to be settled that a law may be valid that exempts a portion of the debtor’s property, such as household furniture, agricultural implements, etc., provided that such portion is not great enough to materially impair the obligation of the contract sought to be enforced: Morse v.
When a contract is made with a corporation at a time when by statute the stock of the stockholders is liable for the debts of the corporation, the legislature cannot repeal such statute and thereby exempt such stock from the payment of such debts, for such repeal would impair the obligation of the contract made between the creditor and the corporation, which contract the corporation had from the stockholders (who were virtually the sureties of the corporation to the amount of their stock) the implied authority to make: Hawthorne v. Calef, 2 Wall., 10, and cases there cited. In Georgia it has been
But we think we have already furnished sufficient illustrations to show that whenever a man contracts, he contracts with reference to all his property (not exempt,) unless he otherwise express it in his contract. The decisions that we have referred to, and many others which we might refer to, could never have been made if such were not the law. See also McCormick v. Holbrook, 22 Iowa, 487. He contracts with reference to his property in this way: He makes his contract; the law provides what shall be done with his property if he does not perform the same; he knows or is presumed to know the law, and to make it a part of his contract. Eor instance, suppose he gives a promissory note. His contract will then be in legal effect as follows: “ One year after date, for value received, I promise to pay A. B., or order, one hundred dollars, with interest. But if I do not so pay the same, then I further agree in accordance with the present law, that said A. B., or his assignee, may sue me, obtain a judgment for that amount, have an execution issued and levied on my property, and have the same sold to satisfy said execution.” This is a married man’s contract with reference to his property. A married woman may under said §2 of the married woman’s act contract “in the same manner, to the same extent, and with like effect,” with reference to her property.
We do not think that the said answer of the said defendant stated a good defense to the plaintiff’s action. Therefore the demurrer to the answer was properly sustained, and the decision of the court below is affirmed.