84 P. 570 | Kan. | 1906
The opinion of the court was delivered by'
If the note in suit be a valid obligation enforceable against Mrs. Suggs, her absence from the state tolls the statute, and the plaintiff’s mortgage may be foreclosed. If not, his suit is barred.
It is claimed that Mrs. Suggs is not bound because she had no separate estate when the note was given, and it does not appear to be a contract made in connection with any trade or business conducted on her sole and separate account; that the so-called married women’s act permits contracts only in reference to these matters, and that, except as they are removed by statute, all the common-law disabilities of married women persist. The question for determination, therefore, is the measure of capacity to enter into contracts which a married woman possesses under the laws of Kansas. The legislative act referred to took effect October 31, 1868, and reads as follows:
“Section 1. The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts.
“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.
“Sec. 3. A woman may, while married, sue and be sued, in the same manner as if she were unmarried.
“Sec. 4. Any married womán may carry on any trade or business, and perform any labor or services,*9 on her sole and separate account; and the earnings of any married woman from her trade, business; labor or services shall be her sole and separate property, and may be used and invested by her in her own name.” (Gen. Stat, 1901, §§ 4019-4022.)
Much stress is placed upon the words of the second section “enter into any contract with reference to. the same”; — that is, with reference to her real and personal property. In the case of Deering v. Boyle, 8 Kan. 525, 12 Am. Rep. 480, decided at the July, 1871, term, an action had been brought on a promissory note given by a married woman. She answered that when the note was given she was a married woman; that the note was given to the payee in satisfaction of her husband’s sole, separate and individual debt; and that it was given without any benefit or consideration whatever moving to her. The district court sustained a demurrer to this defense, and this court affirmed the judgment. In the facts of the case there can be found no intimation that the woman had ever possessed any property, trade; or business. There is no presumption of law that she had done so, and if such had been the case'the allegations of the answer show that her contract could not have had any possible connection with them or with her services or earnings. The note concerned a matter entirely outside of the statute, • and yet it was held that she had capacity to make it and that judgment might be rendered upon it.
In the' case of Wicks v. Mitchell, 9 Kan. 80, decided at the January, 1872, term, an action was brought on a promissory note executed by a married woman with others, one of whom was her husband. She answered that the note was given in liquidation of the debt of the other makers, and that she signed as surety only. Her answer also contained the following allegations:
“That said note was not given to the plaintiff for the benefit of this defendant, nor for the use and benefit of her sole and separate property, nor with reference to the same, nor for anything which might or could*10 inure to its or her benefit; that this defendant did not nor has she charged her sole or separate property with the payment of said note, but at the time of its execution refused in any manner so to charge her sole and separate property, or any part thereof.” (Page 81.)
A demurrer was sustained to the answer, and judgment given for the plaintiff. This answer went beyond the one made in Deering v. Boyle, in that it pleaded the woman’s refusal to charge her separate property with the satisfaction of the contract. If the possession of a separate estate which may be bound is necessary in order to confer capacity to contract, the exclusion of such estate from benefit from the transaction and from liability for the satisfaction of the contract ought, it would seem, to be equivalent to the possession of no estate, so far as that contract is concerned. Nevertheless, it was held by this court that Mrs. Wicks had capacity to make the contract, that the answer stated no defense, and that the judgment upon it against her was authorized by law.
In the case of Larimer v. Kelley, 10 Kan. 298, decided at the July, 1872, term, it appeared that in 1864 Mrs. Larimer and Mrs. Kelley were captured by the Sioux Indians. They both escaped, and afterward entered into an agreement with each other to write and publish a book describing their experiences during captivity. The expenses of the work were to be borne by Mrs. Larimer, and the profits were to be divided equally. The petition of Mrs. Kelley alleged that when the manuscript was nearly completed Mrs. Larimer took possession of it, carried it to Philadelphia, and had it published in her own name, thereby depriving Mrs. Kelley of the credit and reputation of the authorship of the book and of her share of the profits of its publication. The answer alleged that at the time the agreement was made the defendant was a married woman and had no trade, business or property on her own account, had no earnings from any such trade or
The contract pleaded was made while the married women’s act of 1859 was still in force. (Comp. Laws 1862, ch. 141; Stat. of Kan. Ter. 1859, ch. 94.) Under that act, as under the act of 1868 (Gen. Stat. 1868, ch. 62) which supplanted it, the only express grant of power to make contracts was that contained in section 2, which related exclusively to property. The points of the argument made in support of Mrs. Larimer’s answer are identical with those made in opposition to the liability of Mrs. Suggs, namely, disability at common law to contract at all; capacity to contract now only to the extent to which the common-law disability has been removed; the letter of the married women’s act, which allows contracts only “with reference to the same” — that is, in reference to property. This court, speaking by Mr. Justice Brewer, made short work of this argument, and announced a capacity to contract which does not relate to real or personal property and which is not described in the statute. In connection with a citation of the statute he said:
“The third and fourth defenses are that a feme covert cannot make a contract such as is set forth in the petition. That contract is one for labor. Each is to furnish her skill and knowledge, her time and labor, in the production of a book. ... If she can perform labor and services on her separate account, she can contract for them. If she performs them, she can recover for them. The coverture of the parties did not therefore avoid their contract, and the demurrer to the third and fourth defenses was properly sustained.” (Larimer v. Kelley, 10 Kan. 298, 304.)
In the case of Tallman v. Jones, 13 Kan. 438, dec
In .the case of Miner v. Pearson, 16 Kan. 27, suit was brought to recover upon the note of Louisa B. Pearson and Walter C. Pearson, and to foreclose a mortgage securing it. The district court refused to render a judgment against Louisa B. Pearson on the ground, as counsel stated, that she was a feme covert. There is nothing in the case to show that she owned the land or had any separate estate when the note and mortgage were given, or that they were given with reference to any trade or business. This court ordered judgment against her, saying:
“A married woman may in this state bind herself by her contracts to the extent of her separate property. And a personal judgment may be rendered against her which will reach any or all of her separate property not exempt from execution .under the exemption laws.” (Page 28.)
In the case of Bolinger v. Brake, 4 Kan. App. 180, 45 Pac. 950, a married woman had joined in the covenants of a warranty deed of her husband’s land. Her capacity to bind herself by such a contract was denied, but both 'the trial court and the court of appeals held her liable, and the judgment was affirmed by this court. (57 Kan. 663, 47 Pac. 537; 58 Kan. 818, 51 Pac. 290.) Other significant decisions might be ad-, verted to.
This court has been organized some forty-four years, but counsel have cited no decision it has ever made in which any defense based on the common-law doctrine of coverture has been allowed to prevail against a married woman’s contract. It is true that in Deering v. Boyle, 8 Kan. 525, 12 Am. Rep. 480, and Wicks v. Mitchell, 9 Kan. 80, it was said that a married woman
In Deering v. Boyle Mr. Justice Valentine undertook to show that the contract involved did relate to property in a sense sufficient to afford technical authority for it as a strictly statutory affair. He argued that a man contracts with reference to his property without mentioning it. The man makes his contract; the law says what shall be done with his property if he fail to perform. He contracts in view.of the law, and thereby relates the contract to his property and binds it. Under the statute a married woman may do as a married man may do, and hence her' promissory note given to pay the debt of her husband may be said to refer to her property in its obligation. A man’s contract, however, does not refer merely to property in present possession or ownership. Future acquisitions are within its obligation, and the reference of a man’s contract to his property may be to such future acquisitions. His contract is that if he do not pay his creditors may sue him, obtain a judgment against him, cafise execution to be issued and levied on his property, and cause such property to be sold to satisfy the execution. But he need not have the smallest item or article of property, real or personal, to make the contract, or to make it refer to his property, or to support a judgment upon it. The opinion concludes:
“This is a married man’s contract with reference to his property. A married woman may under said section 2 of the married women’s act contract ‘in the*14 same manner, to the same extent and with like effect/ with reference to her property.” (Deering v. Boyle, 8 Kan. 525, 537.)
From the context it is plain that the expression used in that opinion, to the effect that unless a married woman’s contract bind her separate estate it is a nullity, referred to the source of satisfaction and not to capacity to contract. The argument is this: A married woman does not bind herself personally — that is, her body cannot be taken on a capias ad satisfaciendum; her husband is no longer liable for her debts and he is not bound; therefore, unless she bind her own property the obligation comes to naught.
The same expression was repeated in Wicks v. Mitchell, 9 Kan. 80, but the context there also shows that the ineffectiveness referred to does not arise from a lack of capacity altogether prohibiting any kind of an engagement, but that it results from the want of a fund to apply to the satisfaction of a contract entered into by one at all times competent to make it.
“A party is held obligated to do that which is the legal effect of the instrument he executes. The rule is as fixed and clear for married women as for any other persons. When they sign promises to pay, the law holds that they act in good faith, and that they intend to do what they have promised. It considers that instrument a válid instrument, and as it can be held valid only because enforceable against her separate estate it enforces it against such estate.” (Wicks v. Mitchell, 9 Kan. 80, 89.)
But the potentiality of property which, as the statute contemplates, may come to her by gift, descent, devise, or bequest, or which she may acquire through her own means, or in connection with her own trade or business, is sufficient to authorize the formation of the contractual relation.
From the foregoing it will be observed that there are no restrictions upon the authority of married women to contract generally. Whatever contract her husband can make she can make. The court availed.
The statement in Deering v. Boyle and Wicks v. Mitchell that a married woman does not bind herself personally was merely a somewhat automatic enuncia-' tion of the old law found in all the unregenerated texts. Thus, in Reeve’s “The Law of Baron and Femme” it is said:
“It is a general rule that a wife cannot so contract as to bind herself; her contracts are' said to be void in law. The principles on which this doctrine is founded are two: (1) The right of the husband to the person of his wife. This is a right guarded by the law with the utmost solicitude; if she could bind herself by her contracts, she would be liable to be arrested, taken in execution, and confined in a prison; and then the husband would be deprived of the company of his wife; which the law will not suffer. (2) The law considers the wife to be in the power of the husband; it would not, therefore, be reasonable that she should be bound by any contract which she makes during the coverture, as it might be the effect of coercion. On-the first ground she is privileged for the sake of her husband; on the last, for her own sake.” (3d ed., p. 182, *p. 98.)
“No action at law can be maintained against her. For the judgment in that case would subject her person to imprisonment; and thus the husband’s right to the person of his wife would be infringed, which the law will not permit in any case of a civil concern.” (3d ed., p. 270, *p. 171.)
When the opinions noted were written imprisonment for debt except in cases of fraud already had been abolished, and by virtue of the very statute the court was considering the power of the husband over the wife in the matter of contracts and property had been destroyed. Therefore, as suggested in section 1045 of volume 2 of Cord on Legal and Equitable Rights of Married Women, the reasons assigned for the incapacity of the wife and for her exemption from personal
“In Kansas, women have all the rights and privileges that men have, except merely that they cannot vote at general elections. A married woman may sue and be sued, contract and be contracted with, buy, sell, barter, trade and carry on business in the same manner,, to the-same extent, with like effect, and as freely as any other person may. And all this she may do in her own name, and in the same manner as others not in her condition.”
For all those who feel that the reasoning of Deering v. Boyle is artificial, attenuated, and against the overwhelming weight of judicial opinion elsewhere, there is secure ground upon which to declare that the final conclusion reached was sound. The words feme covert no longer have for us anything more than a historical interest. The species is extinct in this state. This fact can best be brought into appreciation by standing for a moment with hand on mouth peering into the hole of the pit from whence we were digged.
•The common law relating to the rights and powers of married women was based upon a belief in the complete union of the married pair, which would be destroyed by allowing any opportunity for a divided will. It was assumed that conjugal affection would lead the husband to deal justly with his wife, and, if that motive were not sufficiently potent, that a realization of the fact that his wife’s interests were identical with his, fear of family discord, pride of appearance and other promptings would move him to eschew all arbitrariness. But it was believed that occasional lapses into despotism might better be suffered than to compromise the indivisibility and indissolubility of the matrimonial union. Hence, to the numerous and respectable audience present at his lectures Blaekstonesaid:
“By marriage the husband and wife are one person*17 in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme covert, foemina viro cooperta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. (1 Black. Com., Cooley’s 3d ed., 441.)
In fact, the woman acquired nothing but a right to support. She was despoiled of all her goods, chattels, and money, which the husband might dispose of as absolutely as if they had always belonged to him, and which he might will away from her at his death. He was entitled to the possession and profits of her land during the marriage, and if he survived her, and a child had been born, the right continued until his death. If she acquired property she could not hold it — it went to him. She could not make a contract or a testamentary disposition of her property, because she had no independent will of her own. The making of a contract with her husband was inconceivable. He was guardian of her children, and was entitled to her earnings and her services. Whatever she did was presumed to be under his coercion. He could restrain her person, and could visit corporal punishment upon her for the purpose of restoring that concord and harmony which marital unity required. If the baron killed his feme it was an ordinary kind of homicide. If the feme killed her baron it was a species of treason, because she rebelled against the authority and supremacy of her lord, and she was disemboweled and burnt alive.
All this followed naturally, logically and inevitably from the ideal nature of the perfect union, with headship in the husband, which the sacramental ceremony of marriage at the common law established, but it sti
Courts of equity interposed their cumbersome makeshifts of trusteeships, uses, settlements', and equitable separate, estates; but equity follows the law, and unaided it could not overthrow the harsh and stern legal doctrines by which the degradation of married women was accomplished. Finally remedial legislation put in its tardy appearance. In Kansas a beginning was made with the territorial act of 1859, already cited. When the state constitution was framed it commanded ■the legislature to provide for the protection of the rights of married women in acquiring and possessing property — real, personal, and mixed — separate and apart from their husbands, and for their equal rights in the possession of their children, and created the homestead, which it exempts from forced sale for the payment of debts and which it prohibits the husband from encumbering or alienating without the joint consent of his wife. (Const., art. 15, §§ 6, 9; Gen. Stat. 1901, §§ 232, 235.)
These constitutional provisions themselves irretrievably broke down the common-law theory of marital unity, destroyed the notion of feminine subjection to baronial* authority, threw off the restraints of coverture, and installed the modern doctrine of the equality of man and wife before the law. Legislative acts based upon the same principles speedily followed, until not only does a married woman have the right to
All the legislation affecting the status of married women must be considered in order that the full virtue of each separate act may be appreciated, and it is noteworthy indeed that on the same day the married women’s act of 1868 became operative the following statute went into effect :
“The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state; but all such statutes shall be liberally construed to promote their object.” (Gem Stat. 1868, ch. 119, § 3; Gen. Stat. 1901, § 8014.)
The court, therefore, is not obliged to bend its efforts toward the preservation of the swollen autocracy of the baron over the feme, but it is at liberty to interpret acts of the legislature from the standpoint of the legislature itself, and according to the remedial purpose it had in view. This purpose clearly appears to involve
“The tendency in Kansas has always been toward an exact equality among the sexes under the law. The tendency has been to place all adult persons, male and female, upon the same legal plane so far as such a thing can be accomplished.” (Mr. Justice Valentine, in Miller v. Morrison, 43 Kan. 446, 449, 23 Pac. 612.)
“In Kansas a woman is in nearly all matters accorded civil and political equality with man; she is not his servant nor his slave. Here, the sexes may harmonize in opinion, and cooperate in effort; here, woman is no longer subordinate to man, but the two are coordinate together; here, the burden of a common prejudice and a common ignorance against woman has been wholly removed; here, the tyranny which degrades and crushes the wives and mothers in other countries no longer exists; here,'the coveted rewards of life forever forbidden them in some of the states are within their reach; here, a fair field for their genius and industry is open, and womanhood, with the approbation of all, may assert its divinely chartered rights, and fulfil its noblest duties.” (Chief Justice Horton, in The State v. Walker, 36 Kan. 297, 311, 13 Pac. 279, 59 Am. Rep. 556.)
Therefore the one-person idea of the marriage relation as expounded by the common-law authorities can
“In this state a husband and wife are two independent persons; and the husband has no more immediate interest or control over the property of the wife than any other person. Our system of marriage literally implies the equality of the husband and wife; the integrity and individuality of each; the mutual obligation in which love and duty find no bondage; the division of labor; and the multiplication and sharing of happiness.” (Baker v. Stewart, 40 Kan. 442, 459, 19 Pac. 904, 2 L. R. A. 434, 10 Am. St. Rep. 213.)
There is no longer any reason for the common-law doctrine relating to the contracts of married women, and with the death of the reason for it every legal doctrine dies. Reeve applies this test to the case of married women’s contracts.
“The true criterion, by which we determine whether she is liable or not upon her contracts, is, whenever the aforesaid marital right [of the husband] can be affected, and whenever we can presume a possibility of coercion, her contracts are utterly void; but if we can find a case when no marital right can be affected, and every presumption of any opposite coercion is removed out of the way, the wife is bound. The words of that distinguished character, Lord Hardwicke, in 1 Ves. 305, are these: ‘The disability arising from coverture is not for want of discretion, but because she is under the power of the husband; this position I take to be correct, and the consequence is clear, that when she ceases to be under his power there is no solid objection to her managing her own estate as she chooses, if no marital right is affected by it.’ ” (Reeve, Bar. & Fern., 3d ed., p. 182, *p. 98.)
“The laws of Kansas do not presume that a wife who unites with her husband in the commission of a crime acts under his coercion. On the contrary, the laws of Kansas presume that all persons of mature age and sound mind act .upon their own volition,_ and are responsible for their acts. . . . But, giving this presumption its fullest scope — supposing that it has operation at common law in murder cases, as well as in many others — still we do not thihk it can have any operation in Kansas; and this on account of the changed condition of our society and institutions. The' presumption was probably right, when first adopted, for the state of society which then existed. But it cannot be right now, under our present condition of society. And it is not the law. There was once a reason for the presumption; but that reason has long ago ceased to exist in Kansas; and when the reason for the presumption has ceased to exist the presumption itself must also cease to exist.” (The State v. Hendricks, 32 Kan. 559, 564, 565, 4 Pac. 1050.)
“Under the provisions of our statute the reasons assigned for the liability of the husband for the torts of his wife no longer hold good, and therefore, in our opinion, under the changes made by the statute the liability no longer exists. It is a part of the common law that, where the reason of the rule fails, the rule fails with it. . . . Again, in this state, the common-law power of correction of the wife by the husband is no longer tolerated. Under the common law the married woman’s legal existence was almost entirely ignored. She was sunk into almost absolute nonentity, and rested in almost total disability; but all of this has been changed by the statute, and to-day, in our state, ‘her brain and hands and tongue are her own, and she should alone be responsible for slander uttered by herself.’ . . . Our conclusion is that the provisions of our statute change the common-law rule, and thereby discharge the husband from liability for the torts of the wife committed when he is not present and with which he has no connection. In this state the wife stands upon an equality, in all respects, with the husband. She is alone responsible for her contracts, and should be alone responsible for her words and her acts.” (Norris v.*23 Corkhill, 32 Kan. 409, 410, 412, 4 Pac. 862, 49 Am. Rep. 489.)
The conclusion must be that in Kansas coverture affords no ground for declaring invalid a married woman’s contract, even although she possess no separate estate or separate trade or business. This being true, the Suggs mortgage is a valid lien upon the real estate in controversy, and the plaintiff is entitled to have it foreclosed.
E. J. Lowe stands upon the proposition that Suggs and wife did not execute or deliver the instrument through which Mason claims title, and she verifies her pleading to this effect. But she alleges that if she should be mistaken the instrument is no more than a mortgage, upon which suit is barred, and hence that the receiver’s deed to Green is a nullity as a conveyance of land. Besides, she denies under oath the authority of the receiver to execute and deliver that deed. She is, therefore, thoroughly committed to the position that the title to the land passed to the Suggs heirs upon the death of James Suggs, and she cannot be allowed to assume antagonistic attitudes upon the record. The Suggs heirs could not have taken a yalid tax title to their own land. It was their duty to pay their taxes, and a purchase by them from the holder of a tax deed would have amounted to no more than a redemption. The same is true of their grantee, and Lowe acquired nothing by virtue of her acquisition of the Rundle tax title after she had bought out the Suggs heirs.
The district court found that the First National Bank deed was executed and delivered, and did not find that it was a mortgage. It was made subject to the plaintiff’s mortgage. The copy in the record shows a consideration of $1000. Soon after its execution and delivery Suggs and wife left the land, and the deed drew to the bank constructive possession. The bank made public claim to the land in its reports to the comptroller of the currency, paid the taxes upon it,
The defendant Rand makes no claim that he acquired a good title to the land or that he was an innocent purchaser. He claims no higher right than those which Lowe possessed and could convey. Lowe cannot plead for him that he purchased innocently, for he hplds Lowe’s covenants that the title is good in fact.
Lowe acquired title by a quitclaim deed reciting only a nominal consideration. Inquiry at the treasurer’s office — one of the public-record offices of the county— would have disclosed the fact that the bank had paid the taxes on the land for a series of years. An inquiry at the bank or of its receiver would have discovered the bank’s title. Hence Lowe was not an innocent purchaser, and Rand’s title obtained through her altogether fails. The purchase-money mortgage given by Rand likewise fails for want of consideration.
The judgment of the district court is reversed, and the cause is remanded, with instruction to render judgment-on the findings of fact in accordance with the views expressed in the foregoing opinion.
