4 Or. 298 | Or. | 1872
By the Court,
A careful examination of the pleadings discloses that this is an action at law upon an implied contract for the payment of money, and that at the time of the transaction out of which the implication arises, the parties were husband and wife. At common law, husband and wife were incapable of making any contract, express or implied, which a Court of law would countenance or uphold. Nor does the constitutional provision (Art. XV, § 5) break the force of this rule. That provision was adopted for the protection of the wife’s prop
Courts of equity protect with great care the separate property of the wife and the proceeds thereof, and enforce against all persons any reasonable agreement concerning it. The beneficent rules which they now apply in this class of cases have tempered the harshness of those relics of feudalism which still find sanction in courts of law.
In this case the amount sought to be recovered was the proceeds of the sale of a parcel of land inherited by the appellant during coverture. Under no circumstances could the land, or the proceeds thereof, have been reached by any process issued at the instance of the creditors of the respondent. Being a pecuniary right, occurring during coverture, the respondent could not equitably appropriate it to his own use, or to the discharge of his liabilities, without the knowledge and assent of the appellant. If appropriated for such purpose by the husband without the wife’s knowledge and assent, every consideration of morality and justice would lead a court of conscience to assert its jurisdiction, and order the husband to make restitution. If so applied with her knowledge and assent, we see nothing in the way of treating it as an equitable loan, unless the wife absolutely renounced all claim thereto.
In New York, where the property rights of married women are not more fully protected by legislative enactment than they are in Oregon by constitutional provision, it is well settled that a wife can loan money to her husband, and, before repayment by him, she has a claim against him which she can enforce in equity, though not at law. (Savage v. O'Neil, 44 N. Y. 302.) Transactions of this character are not nudum, pactum. Where the money arises from the wife’s separate property, over which she has com
Judgment affirmed.