176 Mass. 547 | Mass. | 1900
These two cases were argued together. The first is an action at law, and was before this court on the defendant’s exceptions in 173 Mass. 517, and it was there held that the maker of the notes being a married woman, and the notes being made payable to the order of her husband and indorsed by him, no action could be maintained on them against her. It
We think that the ruling was erroneous. The offer was to show that the loan was made to the defendant’s intestate and on her credit. This was consistent with the form of the note, of which she was the maker, and of which the other parties were, as between them and the bank, the indorsers. Lewis v. Monahan, 173 Mass. 122. The fact that the note was declared void as to her did not destroy the original transaction or avoid the debt created by the loan to her. Walker v. Mayo, 143 Mass. 42. Sutton v. Toomer, 7 B. & C. 416.
If the other parties to the note had been co-makers with her, and the loan had been made to all of them, and the note bad afterwards been avoided by one of them, there would seem to be no doubt that the payee could have maintained an action against all of them for money had and received or money lent. Leonard v. First Congregational Society in Taunton, 2 Cush. 462. In such a case, the note having been received on the faith that it was the valid note of all, the payee would be “ warranted in treating it as a nullity, and resorting to the original contract.” Leonard v. First Congregational Society in Taunton, ubi supra. A fortiori ought that to be the case when the liability of the other parties is, as here, collateral and the action is brought against the maker
The plaintiff contends, however, that it is entitled to be relieved in equity against the defence that the notes are void because made payable by the defendant’s intestate to her husband. Its contention is, in substance, that the defendant’s intestate, having received and kept the proceeds of the notes, is estopped in equity to deny their validity. But a party cannot be relieved in equity, we think, by reason of an estoppel any more than at law, from the effect of a positive rule of law. It is the rule of law that controls the conduct of parties, not the conduct of parties the rule of law. To hold otherwise would be to permit parties to set aside at their pleasure, with the aid of a court of equity, the rule of the common law which has been declared and recognized by the Legislature and by this co,urt that contracts between husband and wife are void. It is true that under some circumstances, as, for instance, in the case of trusts and contracts made in contemplation of marriage, contracts between husband and wife have been enforced in equity. See Frankel v. Frankel, 173 Mass. 214. But in this Commonwealth, whatever may be the rule elsewhere, it never has been held that validity could be given to contracts between husband and wife, or in the analogous case of contracts made during minority, by means of the doctrine of equitable estoppel. See
Moreover, there is no allegation in the bill of any conduct or representation, fraudulent or otherwise, on the part of the defend^ ant’s intestate whereby the plaintiff was induced to take the notes and part with its money to her, and thus the very foundation of an estoppel, equitable or otherwise, fails. It is consistent with the allegations in the bill that the plaintiff knew that the defendant’s intestate was the wife of the payee, and acted in regard to the transaction on its own knowledge. It is manifest that the fact that the notes are void does not of itself entitle the plaintiff to relief. Equity does not undertake to afford relief in all cases where contracts are for any reason void in the form in which they have been entered into.
The result is that in the action at law we think the exceptions should be sustained, and that in the bill in equity the decree sustaining the demurrer and dismissing the bill with costs should be affirmed. So ordered.-