83 Wis. 573 | Wis. | 1892
Prior to the statute concerning married women, a feme covert might have a separate estate, which courts of equity, only, could recognize and protect; and she might bind it by her engagements or contracts for the benefit of such estate, or on her own account or for her benefit upon the credit of such estate, which could be enforced only in equity against it, but not by way of judgment or decree as for a personal liability. Her contracts' were void at law, and enforceable only in equity against her separate estate. The statute changed the former equitable ownership of her separate estate into a legal one, and,- for its better security and protection, provided that her estate should “ not be subject to the disposal of her husband,” and that, as to subsequently acquired separate estate, it should “ not be liable for his debts.” It has repeatedly been held, under this statute, that the contracts of a married woman, when necessary or convenient to the proper use and enjoyment of her separate estate, are binding at law, and that all her other contracts and engagements stand, as before the statute, good only in equity, and that the change from an equitable to a legal estate has not, in respect to such other contracts, enlarged her powers or removed the disability of coverture. The power of a married woman to bind herself at law is a restricted'one and limited to the making of such contracts and engagements as are necessary or convenient to the use and enjoyment of her separate estate. Conway v. Smith, 13 Wis. 125; Todd v. Lee, 15 Wis. 365; Beard v. Dedolph, 29 Wis. 136; Haydock Carriage Co. v. Pier, 74 Wis. 582, 585. It has never been held, under this statute, that the wife could contract any debt or obligation, valid at law, not fairly within this restricted power, whatever may have been said in subsequent cases as to her power to acquire and
There is no competent evidence in this case that Mrs. Hanson had any separate estate at the time her husband made the purchases for the store in West Bend and started business there under the name and style of Hanson & Co. ; and as the plaintiff is claiming to recover for the property in question under and through a bill of sale executed by such alleged partnership, as against an execution creditor of the husband, within repeated decisions the burden of
Had it been shown, however, that Mrs. Hanson had a separate estate, we think that the partnership agreement between her and her husband (if any, for there is little more than a scintilla of evidence of one) must be regarded as void, and that the business in question was the sole business of her husband, and the plaintiff’s claim is his sole'and individual debt. The purpose and policy of the statute concerning the rights of married women, in our judgment, forbid the formation of a continuing business engagement between husband and wife, which shall produce a community of interest, liability, and profit, in which the husband would have, as partner, a right of control and management of the separate estate of the wife, so that he could sell and convert it into money from time to time, draw the firm moneys from the bank, and collect notes and bills receivable and dispose of the proceeds, in the payment of his debts or otherwise, without her knowledge or consent. The making of such an engagement by the wife might be, if put in execution, a conversion of her separate estate into that of her husband. Certainly, it is easy to understand that, with his influence and control as husband, such result would be almost inevitable. The principal purpose of the statute is to give the wife the power and rights of a feme sole as to her separate property, free “from the disposal of her husband,” and “ not liable to his debts.” Manifestly, it was not intended that the act should receive a construction that would be subversive of the beneficent purposes for which it was enacted, and which would almost necessarily tend to strike down the protection it was intended married women should have under it in the use and enjoyment of their separate estates. At common law a married woman was incapable of forming a partnership, and the
By the Court.— The judgment of the circuit court is affirmed.