52 Miss. 78 | Miss. | 1876
delivered the opinion of the court.
Ragan & Dickey recovered judgment before a justice of the peace against A. A. Griffin, for $154.33, besides costs of suit. In payment of this judgment Belle Griffin joined with her husband, A. A. Griffin, in an order or inland bill of exchange-drawn on one J.. M. Scott, who-accepted it. The payees, Ragan & Dickey, sued the drawers and the acceptor on the-pajier, and recovered judgment by nil elicit.
The sheriff levied an execution, issued on the judgment, on the property of Belle Griffin. The-original indebtedness was-exclusively personal to her husband, with which she had no-concern. She joined in the order with him as his suretjn
On these facts she obtained an injunction and prayed that it might be made perpetual, and the judgment be declared for naught as to her.
On motion of Ragan & Dickey, the defendants, the injunction'was dissolved, and from that order this appeal Avas taken.
The authorities are not agreed as to whether a judgment against a married woman is void or not. The courts of Pennsylvania have held in several cases that her bond is void, a judgment entered on her bond with a warrant of attorney is void, and that a sale thereunder would not pass a title. Dorrance v. Scott, 3 Whart., 309 ; Caldwell v. Walters, 18 Penn. St., 79 ; Graham v. Long, 65 Penn. St., 383. The same rule prevails in Maryland: Griffith v. Clark, 18 Md., 457; In Massachusetts : Morse v. Tappan, 3 Gray, 411; In Missouri: Higgins v. Peltzer, 49 Mo., 152.
In the first of the cases last cited the debt was manifested
In Steadman v. Holman, 33 Miss., 551, one question was as to the validity of the judgment and of the sale under it. The court say that if it was founded on contract of husband and wife, made during coverture, the judgment would be invalid and the title would not pass. Harvy v. Edington, 25 Miss., 23.
The reason which lies at the foundation of these cases is that the contract of the wife is void ; that the judgment is a species of, or in the nature of, a contract, but of a higher dignity; that the married woman cannot employ, appear by, or make defense by an attorney.
Nor is this case relieved from this predicament by statute. She may make certain contracts, for which her estate is responsible, and suits to enforce such liabilities are special proceedings, directed against the separate estate. It becomes, necessary, therefore, to aver and prove a statutory contract to establish a right to the special judgment against her property. It must appear of record that the creditor states or brings his case within the statute ; otherwise, the contract falls under the condemnation of the common law.
That is the uniform testimony of our-adjudications.
The disability of coverture has only been partially removed.
In this case the bill states a case which the statute does not protect, but which the common law pronounces void.
On the case stated, Mrs. Griffin is entitled to relief.
It was error, therefore, to have dissolved the injunction.
The order of the chancellor, sustaining the motion and dissolving the injunction, is reversed, and judgment here overruling the motion.