National Bank v. Smith

43 Conn. 327 | Conn. | 1876

Carpenter, J.

The act relating to suits against married women, approved August 1st, 1872, provides that “ actions at law may be sustained against any married woman upon any contract made by her, upon her personal credit, for the benefit of herself, her family, or her estate.” It is claimed by the plaintiffs, and the court below so held, that under this act Mrs. Smith was liable in this action.

The husband, being insolvent, had compromised with his creditors. The note in suit was given to raise money to enable him to pay the amount agreed upon, and was secured by a mortgage of the wife’s property. That the debt was contracted upon the credit of the wife and her estate may be conceded. But that is not enough to fix her liability. The contract must have been for the benefit of herself, her family or her estate. There was no direct benefit to herself except such as may result from all contracts made by her husband. The substance of the transaction was that she was surety for her husband. It related to his affairs, not hers. Surely the legislature could not have intended to make her liable at law on such contracts.

Nor was it a contract for the benefit of her family in the sense in which that word is used in the statute. It was in the course of her husband’s business, and, presumably, was beneficial in a general way to the whole family. But the family was supported by him and not by her. It was not a case in which the wife supported the husband, nor was it a case in which she supported herself and her children independently of the husband, as in the case of Buckingham v. Moss, 40 Conn., 461.

We are also satisfied that it was not for the benefit of her estate. In Langenbach v. Schell, 40 Conn., 224, the wife gave her note for money borrowed to make improvements upon her real estate. In Donovan’s Appeal from Probate, 41 Conn., 551, the wife borrowed money with which she purchased real estate, taking the deed in her own name. After her decease her estate was held liable in equity for the money so borrowed. In Hitchcock v. Kiely, 41 Conn., 611, the contract was for the erection of a dwelling-house on the land of the wife with her knowledge and consent. It was held, assuming it to be her contract, that the land was subject to the mechanics’ lien on the ground that the contract was for the benefit of her estate.

In all these cases there was a benefit accruing to the wife’s estate aside from that which she shared with her husband, and the benefit was direct and immediate. In this case she had no estate which was directly benefited. The benefit to her business, (keeping boarders,) if that may be regarded as her estate, was not direct and certain, but remote and contingent. After the money was received, and her husband’s debts paid, it was at his option whether to allow her to continue to take boarders and receive the profits.

Whether the course pursued by these defendants, the husband furnishing supplies, and the wife taking the avails, did not operate as a fraud upon the creditors, which rendered the property thus accumulated liable for his debts, is a question we have no occasion to discuss, as this is not an appropriate proceeding to raise that question.

For these reasons we think that the judgment against the wife was erroneous and must be reversed.

In this opinion the other judges concurred; except Pardee, J., who did not sit.