38 P. 182 | Or. | 1894
Opinion by
The plaintiff, after she had proven the execution and delivery of the Haines mortgage, and the payment to her of the principal and interest thereof, testified that she delivered the moneys when collected to her husband to invest for her, which he promised to do, and to repay the amount when she wanted it, but that no part of it had ever been paid. The defendant, over plaintiff’s objection, and presumably to rebut her testimony, introduced in evidence a copy of said last will and testament, which, among other provisions, contained the following: “Secondly, I do will, bequeath, and devise unto my beloved wife, Henrietta J. Grubbe, the use, during her natural life, of all the real and personal property, which I may own, or of which I
The plaintiff duly ,excepted to this instruction, and now contends that the admission of the will in evidence, and the instruction based thereon, were manifest errors;
The effect of this decision is that the presumption of a gift from the wife to the husband of the rents of her separate estate, when used by him in the support of the family, may be corroborated by proof of a gift from him to her, as tending to show that the relation of debtor and creditor was never contemplated and did not exist between them;
2. The defendant’s counsel contend that it having appeared from the pleadings that at the time of the alleged transactions upon which the plaintiff bases her claim she was the wife of E. T. Grubbe she could not enter into any contract with him upon which she could maintain an action at law, and that if she had any remedy it was enforcible only in equity. The following provisions of Hill’s Code are deemed involved in the discussion of this question: ‘ ‘ 2992. The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired, shall not be subject to the debts or contracts of her husband, and she may manage, sell, convey, or devise the same by will to the same extent and in the same manner that her husband can property belonging to him. 2997. Contracts may be made by a wife, and liabilities incurred, and the same enforced by or against her to the same extent and in the same manner as if she were unmarried. 2870. Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried. ” Without attempting to enumerate the disabilities under which the wife labored in consequence of the harsh rules of the common law, it is sufficient to say that the framers of our constitution wisely created a separate estate for her benefit and protection, (section 5, article XV, Oregon Constitution,) and that the legislative assembly has established her legal identity, emancipated
In addition to the rights secured to a married woman by the foregoing sections the following power has also been granted: “2871. A conveyance, transfer, or lien executed by either husband or wife to or in favor of the other shall be valid to the same extent as between other persons. 2872. A husband or wife may constitute the other his or her attorney in fact, to control or dispose of his or her property for their mutual benefit, and may revoke the same to the same extent and manner as other persons.” It is contended that section 2997, authorizing the wife to contract, is limited, so far as her contracts with her husband are concerned, to those expressly named in sections 2871 and 2872, and that, the legislative assembly having by these sections designated the kinds of contracts she can enter into with her husband, the maxim “ expression unius est exclusio alterius,” prohibits her from making any other contracts with him. This maxim is not of universal application, and great caution is necessary to be exercised in its proper use, depending upon the intention of the parties, to be discovered from the face of the instrument: Broom’s Legal Maxims, 653. A conveyance is a contract under seal, but there is often a difference between the power of contract and the power of making conveyances: 2 Bishop on Married Women, § 368. The wife, under the general grant of power given in section 2997, is authorized to enter into parol contracts with her husband, and by sections 2871 and 2872, she has been granted the special power to enter into contracts under seal with him. We do not think the enumeration of the classes in sections 2871 and 2872, is a limitation upon the wife’s power to con
3. The question is then presented whether a married woman, under the statute, can maintain an action at law against her husband for money voluntarily delivered to him under an express agreement to repay the same. Defendant’s counsel contend that section 2870 only permits either husband or wife to maintain an action to recover the possession or control of property wrongfully obtained by the other, and that no action on a contract can be maintained at law by one spouse against the other. This section was borrowed from Iowa, (1 McClain’s Annotated Statutes of Iowa, § 2204,) but we have been unable to find any decision from the courts of that state directly bearing upon the question. In Peters v. Peters, 42 Iowa, 182, it was held that section 2204 of the Code of that state does not authorize the wife to bring an action against her husband for assault and battery committed by him upon her. In Courtright v. Courtright, 53 Iowa, 57, 4 N. W. 824, Seevers, J., says: “Whether this statute,” referring to section 2204 of the Code of that state, “includes property which has been voluntarily given by the husband or wife to the other, or which has been rightfully obtained, we do not deem it necessary to determine. ”
The effect of modern statutes upon the rights of married women has been to give them the privilege of applying to the law courts for relief which under the common law they could obtain only in a court of equity. These-statutes have not created new rights, but have provided-another forum for their enforcement. The redress which-a wife could, under the old system, obtain only in a court-of equity, is, under the statutes of many states, now freely-granted her in a court of law: 2 Bishop on Married Womens.
4. Where money is advanced by the wife to the husband ik will, in the absence of any statute upon the subject, or an express agreement to that effect, be presumed
Reversed.