58 Me. 139 | Me. | 1870
The parties to this suit Avere husband and wife. While the marital relation subsisted between them, the defendant borrowed of the plaintiff money, which she owned in her own right, and gave his promissory note therefor.
The defense rests upon the ground that the note is absolutely void, because given during the existence of the marital relation between the parties.
By the common law, marriage is an absolute gift to the husband
But the statutes of this State have made great and important innovations upon the rules of the common law. By R. S., 1857, c. 61, “ a married woman of any age may own in her own right real and personal estate acquired by descent, gift, or purchase, and may manage, sell, convey, and devise the same by will, as if sole, and without the joinder or assent of her husband.” Since March 22, 1844, “ a husband by marriage . . . acquires no right to 'any property of his wife. ... A married woman may release to her husband the right to control her property, or any part of it, and to dispose of the income thereof for their mutual benefit, and may in writing revoke the same.”
The rights of the wife thus conferred are utterly at variance with those she possesses at common law. Her property is secured to her “ in her own right.” The right to “ manage, sell, convey, and devise ” her property of every description “ as if sole,” includes all the rights of ownership. The words used are most general. If sole, she might loan, sell, or convey, as in her judgment should seem most advisable. The husband acquires no right to any of her property, but she may intrust its control to him, and if dissatisfied with his management, may revoke his authority. She has entire and exclusive authority over her own estate, and he has none. As to her property she is as if sole.
Before the passage of the statutes conferring rights on married women, their rights were protected and enforced by means of marriage settlement, and through the intervention of trustees. By these statutes the necessity of a settlement and of a trustee is avoided. The wife is clothed not merely with all the incidents of uncontrolled ownership, but the rights of the husband over her property are
By the common law, the wife could not convey to the husband, nor the husband to the wife. To accomplish it (for the thing was done), the devious intervention of trustees was required. Under our statutes, it has been held that a husband might deed directly to his wife. Johnson v. Stillings, 35 Maine, 427. So the wife may deed directly to the husband. Allen v. Hooper, 50 Maine, 371. Whether the husband deeded to the wife, or the wife to husband, here was, in each case, a contract between them. In Randall v. Lunt, 51 Maine, 247, it was held that a husband might convey real estate to his wife in payment of his note given her for money loaned by her to him. So in New Hampshire, it was held that a married woman holding real estate to her sole and separate use, under statutes similar to those of this State, might rent or lease the same to her husband, or any other person, and that she was entitled to the same remedies in respect to such property as if she were unmarried. Albin v. Lord, 39 N. H. 196. As the wife may release to the husband the control of her property, so she may revoke the right thus conferred. Revoking those rights, it would seem a necessary inference that she might call him in some way to account for what he may have received during his agency. If not so, then he is an agent without responsibility. If the husband without the consent of his wife receives her private property or money, is not his estate liable ? If with consent, is it any the less liable ?
In Steadman v. Wilbur, 7 R. I. 481, it was held, when the wife loans money to her husband out of her separate estate, that she has the same right to expect and receive security and repayment, and preference in payment out of his estate, as any other creditor has. It was held in Logan v. Hill, 19 Iowa, 491, that a promissory note executed by the husband to the wife, for money borrowed of her, was valid and binding, and may be enforced against his representa
A husband may be the trustee of the separate property of the wife. Riley v. Riley, 25 Conn. 154. In Murray v. Glasse, 21 Eng. L. & Eq. 51, the husband gave his wife a promissory note for moneys received from her separate estate. “ I think, however,” observes Wood, V. C., “in the present case I may hold this to be a good declaration of trust by the husband for the benefit of the wife, though in the form of a promissory note.” When there is a trust, estate, the husband is responsible to the trustee for funds of the wife’s separate estate, appropriated by him to his own use. When the wife is clothed with the full rights of ownership, when she is her own trustee, and the intervention of a trustee has ceased to be necessary, it would bo strange if she were not to be protected in the enjoyment of what the law allows her to hold “ in her own right,” and with which her husband is interdicted from interfering.
The property of the wife is declared hers, — is protected by the law for her sole use. Whether the husband takes the money of the wife without right, or under an agreement to return it, when the common law fails to give an adequate remedy, equity supplements its deficiencies, and protects the wife in what the statute declares she may hold for her sole use. The result is that the note of the husband to the wife is not void. To declare it so, or the loan, of which it is evidence, would be to fail in giving the wife the protection which the statutes were intended to afford.
Our attention has been called to decisions adverse to these results ; but on an examination of the cases relied upon, they will be found to rest on a different state of facts from those here presented for our determination. In Turner v. Nye, 7 Allen, 176, the money for which the note was given was the avails of property which the wife held by inheritance from her father, before the existence of the
The objection to the maintenance of the suit arising from the marital relation, is obviated by the divorce which the plaintiff obtained at her own instance, and through the fault of the defendant.