67 Ind. 42 | Ind. | 1879
This was a suit by the appellant, an infant, by his next friend, against the estate of Emeline Williams, deceased, of whose last will and testament the appellee, David S. Wilbur, was the sole executor.
Tbe appellant’s claim' or cause of action was founded upon a written instrument executed by the said Emeline Williams in her lifetime, of which written instrument the following is a copy:
“ Rising Bun, April 28th, 1868.
“ I, Emeline Williams, hereby acknowledge myself indebted to Hugh D. Williams twenty-eight hundred and sixty dollars, for money, materials and labor furnished me by his father, H. T. Williams, in building and improving my house and lots on the corner of Main and High streets, and house on farm.
‘(Signed,) “Emeline Williams.”
At the time she executed this written acknowledgment,
After divers motions to strike out and demurrers, by the appellee, had been ruled upon by the court, and exceptions entered to the different rulings, the cause was put at issue, and a trial by'the court resulted in a finding for the defendant, the appellee.
The appellant’s motion for a new trial having been overruled, and his exceptions saved to this decision, judgment was rendered on the finding, from which judgment this appeal is now here prosecuted.
In this court, the appellant has assigned, as errors, the several decisions of the court below, adverse to him. It is not necessary that wo should set out these alleged errors, or comment on them, in detail in this opinion, as we are clearly of the opinion that “ the merits of the cause have been fairly tried and determined,” and a right conclusion reached, in the court below. This appears from the record, and, in such a case, section 580 of the practice act forbids
The record shows that, upon the trial of this cause, after the aforesaid written instrument had been given in evidence, “ the plaintiff then admitted that Emeline "Williams, at the date of the above contract, and for three years prior thereto, was the wife of Hugh T. Williams, the next friend in this action.” Under this admission, it is very clear that the written contract in suit, executed by the said Emeline Williams during her coverture, was absolutely void at law. Thomas v. Passage, 54 Ind. 106.
This was the rule of the common law, and there was nothing in the legislation of this State, in relation to married women, which changed this rule, in so far as it applies to such contracts as the one now in suit, at least until the act entitled “An act concerning married women,” approved March 25th, 1879, became a law. Acts 1879, p. 160. But whatever construction may be placed upon the provisions of this act; it is very certain, we think, that those provisions will neither vitalize nor give validity to such contracts of married women as the one sued on in this action, made prior to the passage of said act.
When Emeline Williams executed the written contract now in suit, on the 28th clay of April, 1868, section 5 of “An act touching the marriage relation and liabilities incident thereto,” approved May 31st, 1852, -was the only legislation of this (State vThich had any direct bearing on the validity of such contract, and the power of a married woman, during coverture, to charge her separate real estate with the payment of her indebtedness. 1 R. S. 1876, p. 550. In this section, it was expressly provided that a married woman “ shall have no power to incumber or convey” her lands “except by deed, in which her husband shall join.” This section has recently been the subject of
The cases cited are decisive of the case now before us.
The judgment is affirmed, at the appellant’s costs.
Petition for a rehearing overruled.