Levi v. . Marsha, 29 S.E. 832

Levi v. . Marsha

29 S.E. 832 | N.C. | 1898

It is admitted that the defendant is a married woman and that her husband, who has never been in the United States, either as a resident or visitor, resides in Assyria, Turkey, and that neither has ever been naturalized; that the defendant contracted with and became indebted to the plaintiff to the amount claimed by the plaintiff, and the sole question is whether she is liable on her personal contract. The only defense relied upon is her coverture.

This question has not heretofore been presented to this Court. We must answer it upon such authorities as we find and upon the reason, principle, and policy of the admitted facts. At common law a married woman could not make a binding personal contract, nor can she do so under our Constitution and statutes, except in certain cases, and this case does not fall within those exceptions. The Code, secs. 1825, 1826, and 1832, by their express terms, do not apply. There is nothing very anomalous in a married woman being allowed the capacity (567) of a feme sole under special circumstances. Her disability to contract, to sue and be sued is not like that of a child or lunatic, arising from the presumed want of judgment or discretion. It arises from the nature of the marriage relation. It is intended to secure the husband's right to the person and society of his wife, and to protect the wife against any misuse of the power intrusted to the husband by the marital relation, inasmuch as he is primarily liable for her support and maintenance and for certain of her acts and contracts.

There are, however, some exceptions to the general rule declaring her incapacity. These exceptions are from necessity, and require, in order that natural justice may be done, the protection of those with whom she may contract.

In Troughton v. Hill, 3 N.C. 614, the plaintiff's husband was called upon to take the oath of allegiance or incur the penalty of the crime of high treason if he returned. He left the State, and in 1793 she sued *352 defendant for her money and property in his hands, and it was held that she might sue and be sued, acquire and transfer property, and that she was for all purposes a feme sole except marriage. It was considered that if the husband was banished or had abjured the realm, or if the husband be an alien residing abroad, the wife had the rights of a femesole. Co. Litt., 133a. "If the husband be an alien always living abroad, the reason of the exception also applies," and it was held that the wife could sue as a feme sole in like manner as if the husband had abjured the realm. Deerly v. Duchess of Mazarin, 1 Lord Raymond, 147. In Walford v. Duchess of Pienne, 2 Esp., 554, it was held that the (568) wife was liable as a feme sole for goods sold, when the husband was a foreigner residing abroad, and that the case was similar to that of a husband abjuring the realm, and it was reasonable; that otherwise she would be without credit and might starve. The same reasoning and conclusion were adopted in Gaillon v. L. Aigle, 1 Bos. P., 357, and in Gregory v. Paul, 15 Mass. 31.

In Robinson v. Reynolds, 1 Aiken, 174, it was held that "she may, however, sue or be sued alone, when the husband is, in law, civilitermortuus, or is an alien who has never resided in this government, or where he is exiled or banished for life or has abjured the realm." Similar conclusions are found in Bean v. Morgan, 4 McCord, 148; Gregory v. Pierce, 4 Met., 478. Chancellor Kent finally remarks: "It is probable that the distinction between husbands who are aliens and who are not aliens cannot long be maintained in practice, because there is no solid foundation in principle for the distinction." 2 Kent. Com., 157.

As the wife's incapacity is not due to a natural cause, but is imposed by a rule of public policy, it ceases with the reason on which it is placed, and she is then like any other competent person, capable of transacting business.

For these reasons and authorities we find no error in the record.

Affirmed.

Cited: Harvey v. Johnson, 133 N.C. 361; Smith v. Bruton, 137 N.C. 81. *353

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