18 Ala. 307 | Ala. | 1850
This action is founded on a promissory note made by the defendant, payable to Mildred Hogue, who endorsed it to the plaintiff’s testator. The evidence showed that Mildred Hogue, the payee, at the time the note was executed, and also, at the time of the endorsement thereof, was a married woman, and that she and her husband lived together in the State of Georgia, until about twelve years ago, when she removed with her children to this. Sate, where she has resided ever since. For some time, she kept a boarding-house, and afterwards managed a small farm for herself, and her children. Jesse Hogue, her husband, never came to Alabama, but remained in Georgia, where’ he died in the year 1847, never having asserted any title or claim to the note. The testimony also tended to prove that the defendant promised to pay the endorsee, after he had acquired the note. These are the material facts*out of which grows the question, whether the endorsement of the note by Mildred Hogue gave to her endorsee a title that would enable him to maintain a suit upon the note in his own name.
The general rule of law undoubtedly is, that if a bill or note be made payable to a married woman, whose husband is under no civil disability or incapacity, it is by operation of law payable to the husband, and he may endorse, or negotiate it, or sue upon it in his own name; for the legal existence of the wife being suspended during the coverture, or rather incorporated into that of her husband, a promise to her during coverture is a promise directly to the husband. — Commonwealth v. Manly et al., 12 Pick. 173; Jones v. Warren’s Adm’r., 4 Dana 333; Story on Bills, §92. This is the general rulé, but it is subject to several exceptions,, which- are founded upon reason and justice. Thus for example, if the husband has abjured the realm, or if he is banished from his country, the capacity of his wife to contract is restored. So, too, it is well settled, that if a' bill or note be made payable to a married .woman, although the title to it vests in the husband, if he sees fit to assert it, yet he may allow her to endorse it in her own name, and if he assents to her endorsement of it, (which may be presumed from circumstances as well as expressly proved) her endorsee acquires a good title, not only as against the-husband, but also against the parties to the bill. In the case of Cates v. Davis, 1 Campb. 485, the action was on a note payable
But there is still another exception to the general rule that á note or bill payable to a married woman is payable to the husband, under which the plaintiff’s testator acquired a valid title to the note. In the case of Gregory v. Paul, 15 Mass. 31, it appeared that the plaintiff was a married woman ; that she and her husband were British subjects ; that her husband never had been a resident of Massachusetts, but that the plaintiff had been abandoned by her husband, and for the last five years had resided in that State, and maintained herself as a single woman. The court held that she was entitled to recover. So, in the case of Phebe Abbott v. Bailey, 6 Pick. 89, it appeared that the plaintiff was a married woman; that she and her husband resied in New Hampshire together, until, by his cruelty, he drove -her off; and that she then came to Massachusetts and supported herself, her husband still being a resident of New Hampshire. The court held that New Hampshire and Massachusetts must be considered as governments foreign to each other in determining whether the plaintiff could maintain the action, and on the ground that the husband had never been a resident of Massachusetts from the time the plaintiff became such, allowed a recovery. Judge Story also says, that a married woman, resident in any country, whose husband is an alien and never has been in that country, is restored to her capacity to contract. — Story on Bills, § 91. It is true, that in the cases cited from Massachusetts, it appeared in the one, that the husband abandoned the wife, and in the other that he drove her off without the means of support, whilst the record before us does not show the reason why Mrs. Hogue and her husband separated. But we would not presume the fault to be hers for the purpose of defeating this action. Her ■conduct, so far as we are informed by the proof, has been unexceptionable since she has been a resident of this State, and by her industry she has maintained herself and her children. To deny to a married woman, thus situated, the capacity to contract
We now propose to examine the questions growing out of the pleading. The second plea avers simply that at the time of the making of the note, and the endorsement of it by Mildred Hogue, she was a married woman. To this plea there was a demurrer and the demurrer was sustained. We think the court erred in sustaining the demurrer. The declaration does not allege the endorsement was made by Mrs. Hogue, with the consent of her husband, and the question presented by the pleadings is simply whether a married woman can endorse in her own name a bill or note payable to her after the marriage. As a general rule she clearly cannot, but she may, under certain circumstances that form an exception to the rule. We think that instead of demurring to the plea, the plaintiff should have replied the facts that gave validity to her endorsement. We do not understand that a plea in bar must be of such degree of certainty as to preclude a conclusion otherwise, but it is sufficient if prima facie it shows a bar to the action as stated in the declaration, and if there exists any other fact or circumstance, not shown by the declaration or plea, which would avoid the bar, it should be replied. We would not, however, reverse the judgment for this error, for the defendant has had the full benefit of this defence under the general issue. — Barron v. Vandvest, adm’r., 13 Ala. 232.
The third plea of the defendant was the statute of limitations of six years. To this plea, there are three replications: First, a subsequent promise; secondly, that the plaintiff filed his bill in equity against the defendant upon the several causes of action mentioned in the declaration, and a decree was rendered in his favor by the Chancellor, in the year 1846, but that this decree was reversed, and the bill dismissed by the Supreme Court in 1847, and that this suit was commenced within a year from the time the bill was dismissed by the Supreme Court. The third replication is, that the note in fact was made in 1842, and not in 1840, the time it purports to bear date. The defendant took
It is not necessary, we think, to examine the other questions growing out of the assignment of errors, for the view 'we have taken of the merits of this case will enable the parties to try the cause according to law, and in the meantime the certificate of the presiding magistrate of Habersham county, Georgia, can be corrected so as to conform to the act of Congress. Let the j udgment be reversed, and the cause remanded.