1 Ariz. 232 | Ariz. | 1875
By Court,
The appeal is from the district court, second judicial district, Mohave county. As appears by the complaint, the action was brought to enforce the performance of a verbal contract entered into by the defendant, Jenny H. Fisher, a married woman, for the sale and delivery of certain personal property to the plaintiff, the same being her separate property, and claimed and held by her as such.
A demurrer to the complaint was interposed, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and from the judgment thereon the appeal is taken. The counsel for the respondent relies upon two points made in his brief and argued at the hearing of the cause: 1. That the sale or alienation of the property mentioned in the complaint was not evidenced or accompanied by any instrument in writing, signed by the said Jenny H. Fisher, and by her acknowledged upon an examination separate and apart from her husband before a proper officer, and that the same was
Upon the point first made, the counsel cites section 6 of amendments to chapter 32, compiled laws, page 306, approved December 30, 1865, and insists that the act relating to the separate property of married women, approved January 22, 1871, compiled laws, page 310, modifies the section cited to the extent only that the wife need not be joined with her husband in a sale or alienation of her separate property, but that such sale or alienation must be made or accompanied by some written instrument signed by her, and by her acknowledged upon an examination separate and apart from her husband, etc. It is pertinent, in considering this point, to refer to the provisions of the law upon the subject prior to the passage of the act of 1865, hereinbefore referred to.
The first section of chapter 32, Howell’s code, approved November 10, 1861, and passed at the first session of the legislature of the territory, reads as follows: “The real and personal property of every female acquired before marriage, and all property real and personal to which she may after-wards become entitled, by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, or engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her, in the same manner and with the like effect as if she were unmarried.”
The chapter was amended by the act of December 30, 1865, hereinbefore referred to, the sixth section of which reads as follows: “Thehusband shall have the management and control of the separate property of the wife during the continuance of the marriage, but no sale or other alienation of any part of such property can be made, nor any lien or incumbrance created thereon, unless by instrument in writing, signed by husband and wife, and acknowledged by her upon an examination separate and apart from her husband before a justice of the supreme court, probate judge, or notary public; or if executed out of the territory, then acknowledged by some judge of a court of record, or
The act of January, 1871, reads as follows: “Married women of the age of twenty-one years, and upward, shall have the sole and exclusive control of their separate property; and may convey and transfer lands, or any estate or interest therein vested in or held by them in their own right, and without being joined by the husband in such conveyance, as fully and perfectly as they might do if unmarried.”
It will be seen that the act of 1864, the first legislation upon this subject had in the territory, placed the wife upon precisely the same footing with unmarried women as to any contract, sale, transfer, or mortgage of her separate property. The husband had no legal interest in such property, nor need he, in any manner, be consulted as to its disposition. She was competent to make contracts concerning it by parol or in writing, in the same manner as any other person might do as to his or her separate property. Then in 1865 the law was changed, and the entire control of the property was given to the husband, guarded, however, by requiring proof of the wife’s consent to any alienation; and herein arose the necessity for the provision as to an examination and acknowledgment separate and apart from her husband.
We have examined these several statutory provisions with care, and we can not adopt the construction which the counsel for the respondent applies to the act of 1871. On the contrary, we think it clear that that act was intended wholly to exempt married women of the age of twenty-one years and upwards from the operation of section 6, in the act of 1865, and to place them precisely where they stood in regard to their separate property under the law of 1864, leaving said section in full force as to married women under that age, who might well be supposed to need the security from imposition provided by the act of 1865 more than persons of more mature age.
The second point made by the respondents is not well taken. It does not appear from the complaint that the defendant, Jenny H. Fisher, was under the age of twenty-one years. If such was the fact, it might have been pleaded as matter of defense, but the failure to aver in the complaint
Judgment must be reversed and the cause remanded for future proceedings, and it is so ordered.
