Eunice Williamson brought an action of debt in the Circuit Court of Jackson county against Samuel Cline and Margaret Cline, based on a single bill, made September 16, 1893.
Margaret Gline came in with a plea to the effect that when the single bill was executed she was the wife of Samuel Cline, living and cohabiting with him, and still so remained; and that she never received any consideration for which the single bill was executed, and she did not, at the execution of it, owe the plaintiff; and that the debt was one of her husband’s, contracted for his sole use and benefit, prior to the date of single bill; and that she was only surety for him in said single bill. Objection was made to this plea, but it was overruled, and the plea received, but no replication was made to it, and judgment was rendered against the husband for the debt, but in favor of Margaret Cline absolving her from the debt.
Eunice Williamson brought this writ of error.
The sole question is whether the married woman was lia
What is commonly called the “Married Woman’s Act’7 lias undergone material legislative amendment since its first ■enactment in chapter sixty six of the Code of 1868. Up to the enactment of chapter three, Acts 1893, a court of law Rad no jurisdiction to render judgment upon the contract of a married woman, and the plea of coverture filed in this action would have at once ousted the law court of the case. Only a court of equity had jurisdiction to enforce against her separate estate such contracts as bound it. White v. Manufacturing Co., 29 W. Va. 385 (1 S. E. Rep. 572). And, in absence of a specific lien by deed of trust or for purchase money, not the corpus of her real estate, but only its issues-•during coverture, could be subjected in equity, and there ■could be no personal decree against her even in equity. Hughes v. Hamilton, 19 W. Va. 366, points 10, 12; Turk v. Skiles, 38 W. Va. 404, point 4 (18 S. E. Rep. 561). While her personal property could be sold outright for debts under contracts that bound it, yet it could not be done by judgment at law and execution, as in the case of persons generally, but only in equity. You could not subject the smallest item •of her chattels without resort to an expensive chancery suit. 'This was a serious inconvenience to< her creditors, even a prejudice to herself. So far as concerns the jurisdiction ot courts of law to enforce her contracts against her separate estate, section fifteen of chapter sixty six of the 'Code, as found in chapter three, Acts 1893, makes a radical revolution. By it a “'married woman may sue and be sued in any court of law or chancery in this State, which may have jurisdiction of the subject-matter, the same in all cases as if she were a feme sole; and any judgment rendered,,against her in .any such suit shall be a lien against the corpus of her separate real estate, and an execution may issue thereon and be collected against the separate personal property of a mar
But does the single bill, executed by the wife, not for any consideration benefiting her or her separate estate, but only for a debt of her husband asihis surety, bind her? It is urgently insisted that it does not. What contracts bound a-married woman’s separate estate under the law as found in chapter sixty six in the first edition (1868) of our present Code, before its amendment and re-enactment in chapter three, Acts 1893, our present law on the subject? What contracts, I repeat, bound a wife’s separate estate under the Code of 1868? I need not and ought not1 enter into a wearisome discussion of this subject, for our function in these days upon this subject, as upon many other subjects, is to-apply the doctrine of stare cleeisis — stand to decisions, rather than enter into prolix disquisitions, admissible when the questions were new, as if wre were hewing out the way through an untouched forest. Courts have widely differed as to what kind of contracts bound separate estate, and elaborate discussion hqs been given the subject elsewhere and in this State. It was settled, under the separate estate chapter in the Code of 1868, by the cases of Patton v. Bank, 12 W. Va. 587; Radford v. Carwile, 13 W. Va. 572; Hughes v. Hamilton, 19 W. Va. 366; Camden v. Hiteshew, 23 W. Va. 236; and Dages v. Lee, 20 W. Va. 584—that a married woman, as to-separate estate, is regarded as a single woman, with right to-dispose absolutely of her personalty, and of the rents and profits of her realty during coverture, as if single; that this-right of disposal (jus dAsponendi) is an incident to the very ownership of separate estate; and that the liability of such estate to all her debts incurred during coverture is also an incident to such ownership, making her personalty and the
Has subsequent legislation' changed it? The act of March 14, 1891 (Acts 1891, c. 109) amending and re-enacting chapter sixty six of the Code, did make section twelve of that chapter work radical change in the law, as above stated, touching the obligation of a married woman’s contracts upon her estate, limiting their validity and obligation to certain cases therein specified, and thereby narrowing very much her power to bind her separate estate by contract; but I need say nothing more relative to that act, because the single bill involved in this case was not executed while it was in force, and it was repealed by the amendment of Code, chapter sixty six, by Acts 1893, chapter three. What, then, is the effect of the last named act upon the power of a: married woman to subject her separate estate by contract to debts? Did it narrow her power to do so ? Its purpose not to narrow, but to widen the liability of her estate is spoken by both letter and spirit of the act. Her capacity to contract and bind her estate has been for years, under legislation and decision here and. elsewhere, save the act of 1891, widening, and this last act breathes the spirit of the intention of the legislature to make her, in this regard, a single woman, as it subjects her personalty to the jurisdiction of courts of law and equity, and to their judgments and decrees, and makes them bind
It is contended by counsel that this new section fifteen of its own force gires married women as full power to contract as if single. There are some views 'that occur to' me imparting force to this theory. No other section defines or limits her power to contract. The section says she may be sued in any court in all cases as if single, and any judgment against her shall be a lien on the corpus of her real estate; it thus seeming that the legislature intends to malee her a single woman as to liability to civil' suit, and for'the same causes as if single. Saying she may be sued in all cases as if single appears to mean that any cause of action on contract which would bind an unmarried woman will bind a married one; and, being compared as to liability to suit with the single woman, why is she not correlatively measured by the single woman also as to her capacity by contract to subject herself to that liability? But further reflection induces me to' the conclusion that the mission of this section is not to enlarge the woman’s ability to contract, but only the remedies upon contracts binding her estate. Before the enactment of this section, justices’ courts and all courts of law were powerless to enforce her contracts against her separate estate, and even equity could not subject the corpus of her estate to her debts; and the design and motive of this section were to remedy these evils by giving law courts, as well as chancery, jurisdiction over her estate, and toi bind the corpus of her real estate by contracts which before bound only its rents and profits; and it was. not the purpose to erect a new1 test of the validity of her contracts by making binding contracts not before binding. See Fitzgerald v. Quann, 109 N. Y. 441 (17 N. E. Rep. 354). But it is of no practical importance to the decision of this pase that section fifteen does not enlarge the married woman’s capacity to contract, since it is clear that the single bill in this case is binding on Mrs. Cline’s separate estate, as the statute was before the passage of section fifteen, as expounded by this Court in cases above cited, and as it still remains; and, being valid, she can be sued at law upon it.
It is said in brief of counsel that the Circuit Court was of opinion that the language found in the statute that a married woman holds her separate estate free of her husband’s control, and it is. in no way liable for his debts, exonerates it from, his debt, though she bind herself as surety for it, and that she cam not go his security, as there is no consideration beneficial to her or her estate. I need only say, as to. this, that our statute has from the first declared thati a wife may
This single bill gave indulgence for a fixed time, and thus tied the hands of the creditors from suit until its expiration, as even a mere promissory note, given for a pre-existing one, will. Bank v. Good, 21 W. Va. 455, point 3; Hopkins v. Det-
It is contended by counsel that, as the single bill in this-' case recites that its promise is “for value received,” that is-prima facie evidence of valuable consideration, and repels the allegation of want of consideration in the plea. So the words are prima facie evidence of valuable consideration-Per Lee, J., in Averett v. Booker, 15 Gratt. 164; Daniel, Neg. Inst. § 161. But the trouble in front of that argument is that the plea is taken for true for want of replication, and, though the single bill would be evidence on that point, if there were issue on it, it is not under these circumstances. So it is argued that the seal imports consideration, and is evidence to deny 'the plea. So it would be, were there a replication.
It is argued by counsel that section fifteen enables-a married woman to contract as a single woman and. therefore that exception from her capacity to contract, stated in point 1 of Hughes v. Hamilton, 19 W. Va. 366, that her bond being void at law, she can show want of consideration, would cease, and she would come under the rule that a sealed instrument imports consideration, and its want can not be shown at law. 5 Rob. Prac. 606, 608; Taylor v. King, 6 Munf. 357; Wyche v. Macklin, 2 Rand. (Va.) 426; Harris v. Harris, 23 Gratt. 737; Metc. Cont. 3. Illegality of consideration in a sealed document may be shown at law, but not want of consideration, or failure of consideration, according to-common-law principles. The statute (section five, chapter-one hundred and twenty six, Code) changes the rule by allowing failure of consideration to be pleaded at law, but, not mentioning want of consideration, leaves that as at common law; so that neither at common law nor under section five, chapter one hundred and twenty six, Code, can want of con
We therefore reverse the finding and judgment, and, rendering such judgment as the Circuit Court ought to have rendered, we disregard the plea as immaterial, and render judgment for plaintiff against both defendants. Mason Bridge Co., 28 W. Va. 639.