16 Haw. 731 | Haw. | 1905
OPINION OF THE COURT BY
This was an action of ejectment to recover possession of certain leasehold premises of which the plaintiff became purchaser April 11, 1904, at an execution sale on a judgment against- J. M. McChesney and R. W. McChesney, surviving co-partners doing business as M. W. McChesney & Sons. J. M.. McChesney having a lease of the premises for seventeen years from August 1, 1895, at an annual rental of $115 with privilege of extension for thirteen years at $200 a year, assigned the lease to his wife Alice McChesney August 20, 1901, “subject to the payment of the rents and taxes as therein provided.” The assignment was acknowledged by McChesney March 11, 1904, and
The defendants’ contention is that the Act of 1888, section 2251, Revised Laws, giving a married woman power to “receive, receipt for, hold and manage property real and personal as if she were sole,” enabled the defendant Mrs. McChesney to take and receive her husband’s assignment of the leasehold as a gift, and that the provision of section. 2252, Revised Laws, that “a married woman may malee contracts in the same manner as if she were sole except that she shall not be authorized hereby to contract with her husband” is inapplicable, the transaction in question not being a contract within the meaning of this provision.
The plaintiff’s claim is thus expressed: “According to the strict rules of the old common law the wife is not permitted to take and enjoy either real or personal property independent of her husband.” By section 2251 of the Revised Laws “a married woman is free from the restraints of the common law which regarded unity of husband and wife in so far as it enabled her to hold property separate and apart from her husband, but it did not free the husband and wife from the restraints of the common law of contracting and conveying to each other. It was still the intention of the legislature that the common law theory that the husband should not convey or deal with the wife should not be changed by statute.” The assignment of the lease by McChesney to his wife was an executed contract.
The plaintiff’s claim cannot be sustained. The statutory capacity of a married woman to take, hold and receive property
We do not regard the assignment made by McChesney to his wife in this case as a contract within the purview of the statute. “A gift completed and executed has none of the elements nor the properties of a contract and does not come within the prohibition of the statute,” being a statute providing that contracts made on Sunday are void. Wheeler v. Glasgow, 11 So. 758 (Ala.). The failure to record the assignment does not invalidate it as against subsequent creditors. Jones v. Clifton, ubi supra; Clark v. Killian, 103 U. S. 766.
The exceptions are sustained, the judgment reversed and the case remanded for further appropriate proceedings.