26 Iowa 474 | Iowa | 1868
The leading, and, indeed, almost sole question in this ease, is, to use the concise language of appellant’s counsel, can a married woman be made liable on her covenants of warranty, in a deed for her own lanpl ? It is agreed that she can not, unless made so by statute. It becomes material, therefore, that we at once ascertain what has been enacted, that we may gather the modifications and changes made upon the common law rule. That they may be better understood, we here give in a condensed form, all the sections, which it is agreed or believed, bear upon the question made
A married woman may convey her interest in real estate in the same manner as other persons. Contracts made by the wife in relation to her separate property, or those purporting to bind herself only, do not bind the husband. For the separate debts thus contracted, the husband is not liable, nor is the property of the wife liable for his debts. Where a married woman is a party to an action, her husband must be joined ; except when it concerns her separate property, or is founded on her own contract, she may be sued alone. In no case need she prosecute or defend by her guardian or next friend. If sued alone, judgment shall be enforced against her separate property. When suing alone, judgment is to be enforced in the same manner, unless the husband is
That these provisions innovate radically upon the rules of the common law, touching the relation of husband and wife — and especially her powers and obligations — ■will be readily conceded, and indeed has been recognized by the repeated rulings of this court. The more important of these, bearing by analogy, or otherwise, upon the question involved, are here collected, and to some of which we shall have occasion to refer hereafter. Rodemyer v. Rodman, 5 Iowa, 429. (This case was ruled before the adoption of the ^Revision, and the change introduced by section 2933 thereof.) Jones v. Crosthwaite, 17 id. 393; Patton v. Kinsman, id. 429; Johnson Co. v. Rugg, 18 id. 138; Simms v. Hervey, 19 id. 273; Lyon v. Metcalf, 12 id. 93 ; Musser v. Hobart, 14 id. 248 ; Blake v. Blake, 13 id. 40; Wolff v. Van Metre, 19 id. 134; S. C., 23 id. 397; Reed v. King, id. 500; McCormick v. Holbrook, 22 id. 487; Sanborn v. Cassady, 21 id. 77; Mitchell v. Sawyer, id. 582; Davidson v. Smith, 20 id. 466; Logan v. Hall, 19 id. 491; Childs v. McChesney, 20 id. 431; Robertson v. Robertson, 25 id. 350.
The statute of New York (acts of 1860, ch. 90, § 157) was perhaps as comprehensive as ours, in the powers given and the rights conferred upon a married woman, in relation to acquiring and conveying real property. It contained no words expressly making her liable upon her covenants in deeds conveying her separate property. And though the subsequent, act (Laws 1862, p. 343, ch. 172) in terms declares such covenants to be obligatory upon her, .we have not discovered that the prior statute had been so construed as to exempt her from liability. Indeed, counsel admit that it was never so expressly decided, and yet insists that the act of. 1862 was passed to remedy a seeming defect. It may be, and it is quite
In this. State the question has been more than once started, but never decided, and this simply because not necessary. Thus in Childs v. McChesney (20 Iowa, 436), it is said: “Whether under the statutory provisions, which, as respects the conveyance of real estate of married women, removes substantially all of the restraints of coverture, a feme covert would be liable in damages for a breach of covenant in a conveyance of her own land, is a question, highly important, if not difficult, and upon which (as it is unnecessary to do so) we express no opinion.” Lyon v. Metcalf (12 Iowa, 93) recognizes, what is nowhere denied, that she was not liable upon the
Aside from the statute, it is undeniable that during coverture she could not make a contract which would bind her person or estate. And this was true of personal and real estate alike. Under the statutes which remove this disability, the questions of difficulty are — what “ contracts relate to her separate property,” and bind her at law; and how, in equity, the intention to bind shall be evinced in cases, of course, where such intention is not expressly declared. In the leading case above cited (Jones v. Orosstlmaite), it was ruled that an executory contract to purchase property is not a contract in relation to her separate property, within the meaning of the statute. Kev. 2506.
The subsequent case (Patton v. Kinsman), following Kale v. Dederer, held that if the consideration has been obtained for the direct benefit of the separate estate, a charge thereon will thereby be created. Suppose she sells and conveys it, is the contract of sale or conveyance binding upon her.? Does it relate to her separate property? "We confess that if not, then her right of property would be shorn of much of its value, and the provisions
If it be said that her inability to contract generally, is still to her the best and surest protection, the thought is without weight when applied to her separate estate or property. To hold that she may buy property, give her note therefor, and be liable thereon as though discovert, is quite another thing from holding that she may sell that which is already her separate property. The very words “in relation to her separate property,” imply that she already has. such property, either by inheritance, settlement, or the like, as to which, or “ in relation ” to which, she contracts. Before obtaining it, there is no just sense in which it can be styled “ separate,” nor can it be said that she contracts in relation to the estate which she does not own. But once hers, once her separate property, held by her in her own right it must be that she is to be treated in all contracts in relation to it, and every thing connected with it, as a man, and may sue and be sued in precisely the same manner.
If she had made a contract to convey this land, there could be no question as to the right of the purchaser to enforce the same. If she had undertaken to pay a sum of
As to the point suggested in argument, that plaintiff did not demand or request, defendants to remove the mortgage lien before discharging it, and hence should not have recovered, we remark that, as we read the record, the court found expressly “ that they neglected and refused to pay the note and hav& the mortgage canceled,” and “that such refusal waé a breach,” etc. The testimony is not before us, and we' can only presume that this neglect and refusal was, under such circumstances, or had reference to such a demand, as thus far would fix their liability. And this is especially so, as plaintiff only discharged the mortgage after suit had been brought thereon against the mortgagor and vendee, and only recovers in this action the precise amount paid, with interest. There is no suggestion in the record that any more was paid by plaintiff, than was actually and legally due.
Affirmed.