5 Iowa 426 | Iowa | 1858
Lead Opinion
That at common law, a feme covert could not be sued, even for necessaries, is admitted. Her separate existence was not recognized, or by the coverture, it was merged in that of the husband. In equity, however, both as to her liabilities and her rights, her separate existence was abundantly acknowledged. In that court, her property, but not her person, could be made liable, through a suit instituted against herself and trustees. Murray v. Barlee, 4 Sim. 82; S. C. 3 Mylne & Keene, 209. How far she might, in equity, make a contract, which would bind her separate property, seems to have been a subject of much controversy. And we find that the books and cases abound in discussions upon the analagous questions, whether her general engagements, without any expressed intention to charge her separate estate, would be binding upon such estate. 2 Story’s Eq. Jur., section 1401 and note; Hulme v. Tennant, 1 Bro. C. C. 16; Francis v. Wigzell, 1 Madd., 258; Nantes v. Corroch, 8 Ves., 189.
Under these provisions, we conclude, that iii order to make the wife liable in her separate property, upon a contract entered into during coverture, the plaintiff should show that such contract related to the expenses of the family, or other proper expenses, as contemplated by section 1455; or that it related to her separate property; or that it purports to bind herself only. During coverture, she cannot be sued in law, as a feme sole, unless the contract is of such a character as is contemplated by the above cited sections.
We do not undertake to decide, that even if the note should not have been given for some one of the purposes contemplated by the Code, the property of the wife may not, in equity, be made liable. This question is not before us, and it is unnecessary to consider it. We conclude that there was error in sustaining the demurrer to the answer, and the judgment is therefore reversed.
Stockton, J. dissenting.
Dissenting Opinion
dissenting. — I dissent from the foregoing opinion, and from the reasoning by which the majority of the court arrive at the conclusion, that the judgment of the district court should be reversed. I find no authority for holding, that the liability of the wife upon
Whether tbe change made by the Code, in tbe relations of married women to their separate property, was a wise one or not, I do not undertake to discuss. But, in my opinion, tbe law has cast no sucb burden upon tbe plaintiff, as is placed upon him by tbe opinion and judgment of this court. If tbe defendant would be released from tbe obligation of ber contract, its invalidity should be shown by some other fact, than that of ber being a married woman, at tbe time of its execution. Sucb defence, in our opinion, is insufficient, and tbe judgment of tbe district court should be affirmed.