81 Fla. 463 | Fla. | 1921
This is an appeal from an order overruling a demurrer to an amended bill of complaint in which the complainants seek to subject the separate property of a married woman to the payment of a sum of money alleged to be due as the reasonable compensation for professional services rendered to her partly during her widowhood and partly after her remarriage. It is prayed that the “defendant or defendants” be decreed to be indebted to complainants, ascertain in what sum and enforce the payment thereof out of the income and profits of the real estate described and alleged to be the property of the married woman, or that the property, both real and personal, be sold to pay the sum ascertained to be due with interest and costs; that the status of the title, possession and tenancy of the property and the claim of third persons be ascertained, a receiver appointed, and in the event of a sale of the property that complainants may have the right to purchase, and that the defendants be restrained from selling the property or subjecting it to any charge or lien, and for general relief.
The bill alleges that Rosa C'happellee McGill before her marriage to S. D. McGill was the widow of Pat Chap pelle, from whom she inherited and was in possession of considerable property, both real and personal, which her deceased husband had earned and accumulated in his business, which was that of proprietor of a traveling show. That shortly after his death his two brothers, Lewis W. and James E. Chappelle, began a suit in chancery against the widow, based upon the claim that as surviving partners of Pat Chappelle they were entitled to the possession of the personal property and real estate of which he died possessed, and prayed for appropriate
TlLe demurrer to the amended bill attacks it upon the following grounds: First, it is not alleged that the amount claimed to be due to complainants from the defendant Rosa is due upon any agreement made by her in writing for the benefit of her separate property; second, complainants have an adequate remedy at law; third, the amount claimed by complainants is not due for
Professional services were rendered by attorneys at law to a widow at her verbal and written request. She is possessed of a large estate, consisting of real and personal property, inherited from her husband, recently deceased. The right of the widow to the possession and enjoyment of the property was questioned by two brothers of her deceased husband, who claiming rights to the possession of the property as surviving partners of their deceased brother, commenced litigation against the widow to obtain possession of the property. It was in this litigation that the attorneys were employed by the widow. The litigation was difficult, the rights of the parties obscured by conflicting evidence in many phases of the case. Decrees were rendered against the widow, appeals were taken and the decrees reversed. The labor at last resulting in decrees in favor of the widow, who during the litigation and while the services of her attorneys were being performed in her behalf remarried. At no time before or during the employment of the attorneys was there any agreement between them and the widow,
We think that the employment of the complainants by the widow contemplated the continuation by them of their services to the end of the litigation. The contract was a valid one, entered into by persons fully capable of binding themselves by agreement. The remarriage of the widow did not terminate the agreement. Her promise was made when she was capable of binding herself by a contract. The relation of attorney and client was not changed by the woman’s remarriage, nor by any act on her part or that of her husband annulling that relation. The services of the attorneys were rendered pursuant to the agreement made with the woman when she was unmarried. The attornys’ right to compensation did not accrue until the completion of the service they agreed to render. By continuing their services after the remarriage of the widow they simply performed the duties on their part to be performed under the contract. When the suit was terminated the contract became executed on their part. They became entitled to their compensation under the contract, which was a valid one, not upon a qumitum mendt upon an implied assumpsit for services performed. While the contract in this case .fixes no definite sum to be paid as compensation to the attorneys, yet a reasonable sum would be presumed to have been contemplated by the parties. And the cause of action would be upon the express contract or promise to pay a reasonable compensation when the service was performed, not upon an implied assumpsit for the value of services rendered. No disturbing event occurred to discontinue the employment of the attorneys, such as death of the client or incapacity of the attorneys. There was no
This case therefore involves the obligation of an unmarried woman whose status since the obligation was assumed has been changed to that of a married woman. Her change of status does not destroy the obligation.
Section 2591, General Statutes of 1906, provides that the husband shall not be liable to pay the debts of the wife contracted before marriage, and that the property of the wife shall be subject to such debts. Prior to this Act the husband was liable to pay the debts so contracted. It was a burden cast upon him by the common law. See 1 Bishop on Law of Married Women, §58; 13 R.C. L. 1215. The statute frees him from such liability. All the considerations which existed at common
The marriage of the woman did not discharge her from liability for the debts incurred by her. See 13 R. C. L. 1219. How that liability is to be enforced is the question to be determined. If the section of the General Statutes referred to creates a lien upon the separate estate of the woman in favor of any creditor of hers while she was sole whose claim was not paid before her marriage, the demurrer was properly overruled. But if no lien is created by the statute in favor of such a creditor, the bill contains no equity, • because the obligation is merely one at law, a promise to pay a reasonable sum for services which were rendered. Under the common law, while the husband was liable for the ante-nuptial debts of his wife it was a joint liability with the wife, but of a temporary or qualified nature. Cole v. Shurtleff, 41 Vt. 311. They were required to be jointly sued in an action for the recovery of the debt. 1 Chitty’s Pleading (16th Am. Ed.) 86. The woman was the real debtor. In the event of the death of the husband the debt survived against her. See Powers v. Southgate, 15 Vt. 471; 2 Kent’s Com. 145; Reeves Domestic Relations, 53.
If a feme sole married pending a suit against her the marriage need not be noticed in the subsequent proceedings. It did not affect the form of the proceedings. The
At common law a married woman was not liable to be sued alone, her husband was joined for conformity. If the creditor recovered a judgment he could collect it out of the property of either. 2 Bishop on Married Women, §52; Woodman v. Chapman, 1 Lamp. 189. The husband was liable to be sued for her debts, but she was a necessary party; execution, however, went against him alone, and was satisfied either out of property which came to him from her at the marriage, or out of his own property. Our statute, Section 2591, 'General Statutes, 1906, the original Act having been passed in 1845, merely relieved the husband of liability as to his wife’s debts contracted before marriage, and provided that the debts should be satisfied out of her property, not his. The language of the Act could mean reasonably nothing more than this. By enactment of the Legislature the property of the wife owned by her before marriage became her separate property, and was not liable for her husband’s debts without her consent in writing. This feature of the common law was thus expressly changed by Act of
The cause of action as disclosed by the bill is a mere common law-obligation upon which action may be brought against the wife at law by joining the husband and in the event judgment is obtained the plaintiff shall be confined to the woman’s separate property for satisfaction. All the incidents of such an action, such as ancillary attachment, etc., are available.
From the views expressed it follows that the court
Br'owne, C. J., and Taylor, Whitfield and West, J. J., concur.