124 Mich. 34 | Mich. | 1900
The sole question presented upon this record is, Have the Constitution and act relative to the rights of married women abrogated the rule of the common law that a husband is liable for the antenuptial contracts of his wife? The court below held that they had not: By section 5, art. 16, of the Constitution, all the property of every female acquired before marriage, and all property acquired after marriage by gift, grant, inheritance, or devise, remains her property during coverture, and is not liable for the husband’s debts, and may be devised and bequeathed by her as if she were unmarried. The first section of the married woman’s act of 1855 goes further than the constitutional provision, and authorizes
“The husband of any married woman shall not be liable to be sued upon any contract made by such married woman in relation to her sole property, and the wife shall be liable to be sued upon any contract or engagement made by her in cases where her husband is not in law liable, or where he refuses to perform such contract or engagement, and, in any case herein authorized, the cause of action shall be deemed to have accrued from and after the passage of this act.” 3 Comp. Laws 1897, § 8693.
It has been very generally held by the courts of the States that the married women’s acts, which make them the absolute owners of all their property, confer upon them the right to make contracts with reference thereto, and make them liable thereon, do not abrogate the common-law incidents of the marital relation which are not within the evident purpose of the act. Among these is the common-law liability of the husband for his wife’s antenuptial contracts. Kies v. Young, 64 Ark. 381 (42 S. W. 669, 62 Am. St. Rep. 198), and cases cited. Counsel for plaintiff rely much upon the fact that there is no express abrogation in the married woman’s act of this common-law liability, and upon the rule that statutes in contravention of the common law must be strictly construed. Courts will not hold the principles of the common law abrogated by implication, unless the common law and the statute are in direct conflict. The chief justice, in Kies v. Young, supra, dissented, applying the maxim, “Gessante r alione, cessat etiam lex.” Counsel, in their briefs, have not given us the benefit of the statutes of other States upon which the decisions are based. To have a controlling influence, the statutes of those States must be substantially like our own.
Counsel cite Bertles v. Nunan, 92 N. Y. 165 (44 Am.
In both the cases above cited, the court held that, under the married woman’s acts in those States, the common-law right of tenancy by the common curtesy remains, while we have held that, under our statute, tenancy by the curtesy is abolished. Tong v. Marvin, 15 Mich. 60.
We have examined the statutes of several States whose decisions are cited to support plaintiff’s contention, and we find none which contains provisions like that of section 8693 óf our statute. The Arkansas decisions differ from ours in other respects. That court holds that, under their statute, the husband and wife cannot contract with each other, while this court has held to the contrary. Randall v. Randall, 37 Mich. 563. The decisions of the court prior to 1883 upon the effect of this act are cited in Edwards v. McEnhill, 51 Mich. 160 (16 N. W. 322). Decisions since rendered are in harmony with those.
At the common law, the husband is not liable for any postnuptial contracts made by the wife in regard to her separate property, but is only liable for her contracts dum sole. Unless, therefore, the statute included antenuptial contracts, there would seem to be some force in the con
Judgment reversed, and entered in this court for defendants.