Kennelly v. Savage, 18 Mont. 119

Kennelly v. Savage

18 Mont. 119 | Mont. | 1896

PEMBERTON, C. J.

The appellants contend that the lease from plaintiff to Savage was void because not acknowledged by her, and because her husband did not join with her in the execution thereof; and that, the lease being void, no action can be maintained on the bond given for the fulfillment of the terms and conditions thereof.

*122Counsel for appellants contend that the lease in this case is a conveyance under the provision of section 270, Division 5 of the Compiled Statutes, 1887.

Section 254, Division 5 of the Compiled Statutes, 1887, is as follows : “Section 254. A married woman may convey any of her real estate by any conveyance thereof, executed and acknowledged by herself and by her husband, and certified in the manner hereinafter provided by the proper officer taking the acknowledgment.”

Counsel for appellants contend that, as the leas® was not executed and acknowledged in accordance with this section by her husband joining with her in the execution thereof, it was void, and no action would lie on the bond given for the fulfillment of the terms thereof.

Since the enactment of the sections above referred to, the law in relation to the rights and powers of married women in this state has been radically changed. On the 3d day of March, 1887, an act of our legislature was approved, entitled “An act to declare and protect the legal and personal identity of married women. ’5 This act is popularly denominated ' ‘ the married woman’s emancipation act.” On the 7th day of March, 1887, an act of our legislature was approved, entitled ‘ ‘ An act concerning the rights of married women. ’ ’ Section 7 of the last act, which is section 1448, Division 5 of the Compiled Statutes, 1887, and which was in force when the lease in this case was executed, is as follows : “ Section 1448. That a married woman may make contracts, oral or written, sealed or unsealed, and may waive or relinquish any right or interests in any real estate, either in person or by attorney in the same manner, to the same extent and with the like effect as a married man may do. ’ ’

Statutes like ours, extending the rights and enlarging the powers of married women, have received frequent interpretation by the supreme court of Massachusetts. The supreme court of that state holds that such statutes radically change the law of the statutes relied upon by counsel for the appellants in this case. See Harmon v. Railroad Co. (Mass.), 42 N. E. 505, and cases cited.

*123We think section 1448, quoted above, confers upon a married woman the same right to convey her separate real estate, or relinquish any interest therein, that a married man has. It would not be contended that a married man cannot convey any title, interest or estate in real property he owns without his wife joining him in the execution of the conveyance, except, perhaps, the homestead. We think section 1448 repealed section 254, quoted above, and relied on by counsel for appellants, in so far as it is repugnant thereto. We think, therefore, the lease of plaintiff to Savage was not void as contended for by counsel for appellants.

The defendant bondsmen allege in their answer that E. C. Waters and defendant Savage formed a copartnership to conduct the hotel business in the leased premises under the firm name of C. W. Savage & Co., with the knowledge and consent of plaintiff, and without the knowledge and consent of said bondsmen, about the .time the bond sued omwas executed; and that the bondsmen were thereby released from any obligation' on the bond. There was some evidence tending to support this allegation offered by the appellants on the trial. In re-rebuttal of such evidence, and for the purpose of impeaching the testimony of Savage and Waters, and to show knowledge on the part of the bondsmen of the existence of said firm and its occupancy of the premises, plaintiff introduced certain letters written to her by Savage. The appellants then sought to have Savage explain said letters, to show that they were written by Waters at the suggestion of plaintiff or her agent, and signed by Savage, so that there would be no release of the sureties on the bond. The court refused to permit the witness Savage to so explain, or give any explanation of the letters. Respondent’s counsel, in their brief, say these letters were offered for the purpose of impeaching the witnesses Savage and Waters. If so, the witnesses had a right to explain them, and the action of the court in refusing to allow the witnesses to explain was error.

Counsel for respondent contend that it was immaterial as to svho wrote the body of the letters, inasmuch as Savage signed *124them, ancl assented to their contents. This may be true as far as defendant Savage himself is concerned. But his bondsmen contend that Waters wrote the letters at the suggestion of the plaintiff or her agent, and Savage signed them, and that the letters were so written for the purpose of concealing the connection of Waters with Savage in the hotel business in the leased premises in order not to release the bondsmen from their liability on Savage’s bond. If this contention be true, then it became vitally material to the bondsmen to show the circumstances under which the letters were written, and for what purpose. These things they had a right to show, if they could, by having Savage explain why, for what purpose, and under what circumstances the letters were written..

On account of the action of the court in refusing to permit the witnesses to explain these letters, we think the judgment against the defendant bondsmen, and order refusing them. a new trial, should be reversed.

The judgment against C. W. Savage, and the order of the court refusing him a new trial, are affirmed. As to all of the defendants except Savage the judgment and order appealed from is reversed, and the cause remanded' for new trial.

■ Reversed.

De Witt, and HüNt, JJ., concur.