68 Md. 342 | Md. | 1888
Lead Opinion
delivered the opinion of the Court.
In the argument of this case several questions of interest were discussed quite fully, but in the view we have of the principal question involved, it will be unnecessary for us to notice all the questions presented.
The action was brought against husband and wife upon two promissory notes made jointly by husband and wife, in 1879. More than three years had elapsed from the time the notes fell due to the time of bringing the suit, and -the defendants severed in pleading, and each pleaded, with other pleas, the Statute of Limitations as a bar to the action. The plaintiff replied to the plea of limitations, that the defendants did, within three years next before the institution of the action, undertake and promise in manner and form as the plaintiff hath declared against them.
It is shown in proof that the notes sued on were given for the debts of the husband, and that the wife became surety. The husband made several payments on these notes within three years next succeeding the time when they became due, and the suit was instituted within less than three years from the date of the last of these pay
The common law disability of the wife still exists in this State, except in the special cases, and to the extent, that the Legislature by statute have thought proper to remove or qualify such disability. It is the Act of 1872, ch. 270, that is, relied on by the plaintiff in this case, as having removed the disability of coverture, and fixed upon the wife all the liabilities of a feme sole, in respect to the notes in question. That Act provides, that “any married woman may be sued jointly with her husband, in any of the Courts of this State, on any note, bill of exchange, single bill, bond, contract, or agreement, which she may have executed jointly with her husband, and may employ counsel and defend such action or suit separately, or jointly with her husband, and judgments recovered in such cases shall be liens on the property of the defendants,” &c.
In regard to the power to execute the notes, though as mere surety for the husband, there is no question; but the question is, whether the husband, by any separate, independent act.of his own, can extend the liability of the wife, and deprive her of a lawful defence given her by statute, which she may plead separately from her husband? Suit may be brought jointly against husband and wife, but what avails the right of the wife, secured to her by the statute, to make a separate defence, if she is to be bound and concluded by every separate and independent act of the husband that may have the effect to bind him ? Can it be supposed that the Legislature contemplated the right and power of the husband, by any separate, independent act of his own, after the execution of the note or obligation,
In this State, as in England, there must be shown to exist one of three things to take a case out of the operation of the Statute of Limitations: Eirst, an admission or acknowledgment by the debtor of a subsisting debt, from which a promise to pay may be implied ; secondly, an unconditional promise to pay the debt; or, thirdly, a conditional promise to pay the debt, and evidence which shows that the condition has been performed or gratified.
As a general rule, the acknowledgment of the debt, as by the payment of part of the principal or interest due, by one of several joint debtors, made before the Statute has become a bar, will arrest the Statute, and prevent its becoming a bar to the debt, until after the lapse of the statutory period from the date of the new promise or acknowledgment. But it is otherwise, if such acknowledgment or promise be made after the Statute has run and become a bar to the debt. In such last mentioned case, the acknowledgment or promise will only be eifectual as against the party making it, and not against the joint debtor. Ellicott vs. Nichols, 7 Gill, 96 ; Newman vs. McComas, 43 Md., 82 ; Schindell vs. Gates, 46 Md., 615. And
Now, upon the principle thus fully recognized and adopted, can it be 'successfully contended, that there was any implied power of agency vested in the husband by the wife, by the joint act of making the notes, under the special power conferred by the statute, whereby he was authorized, either by making partial payments, or other acknowledgments or promises, to bind the wife, and to preclude her from taking the benefit of a legal defence given her by law? We think not. For if he can extend
The Act of 1872, ch. 270, would seem to leave no room for doubt on this subject. It was intended to confer a special and limited authority upon married women, and that authority was intended to be exercised only under the restriction imposed by the Act, namely, the concurrence and joinder of the husband with the wife, in the execution of the instruments mentioned. There is nothing in the terms of the Act to furnish the slightest ground for holding that the husband was intended to take any rights or authority over the property or contracts of the wife, more than he had previously possessed. The wife was not bound by his separate contracts or promises, either express or implied, and hence his acknowledgments or admissions, by partial payments on the notes, or otherwise, in no manner affected the rights of the wife.
Upon principles of the common law, which apply to this case, except as they have, by the express provisions of the statute, been modified, there can be no doubt that the acknowledgments or partial payments by the husband are wholly without effect, so' far as the wife is concerned. In the case of Pittam vs. Foster, 1 B. & Cr., 248, where suit was brought against husband and wife, and one Foster, on a joint promissory note made by Foster and the wife
Entertaining these views in regard to the plea of the Statute of Limitations interposed by the wife, we are of opinion that there was no error committed by the Court below, in refusing to grant the prayers offered by the plaintiff, and in granting that offered on the part of the feme covert defendant.
The defendants having severed in their defences, the plaintiff could have entered a nolle prosequi as to the wife, and proceeded to judgment as against the husband. Minor vs. Mechanics’ Bank, 1 Pet., 46. But not having done this, the action being joint and on a joint contract, the judgment was required to be joint also ; and as judgment could not go against the wife', the verdict was properly directed to be for the defendants generally. Max vs. Roberts, 5 B. & P., 554 ; Bush vs. Stowell, 71 Penn. St., 208-210; 1 Chitt. Plead., (16th ed.,) 50.
The judgment must be affirmed.
Judgment affirmed.
(Decided 6th January, 1888.)
Dissenting Opinion
delivered the following dissenting opinion, in which Judge Robinson concurred:
In my opinion if a married woman signs a promissory note jointly with her husband, she is by the Act of 1872, ch. 270, placed, in respect to that note, in the same position as if she were a feme sole; that the payee has the same remedy against her that he would have against any other joint maker, and may maintain an action upon it against her whenever he could maintain such action against any one else.
(Filed 6th January, 1888.)
A motion was made by the appellant on the 7th of January, 1888, to have the judgment in the foregoing case modified. The application was granted, and the following opinion of the Court was delivered by Chief Judge Alvey:
Since the filing of the opinion in this case, the appellant has moved that the judgment be modified, so that he shall he at liberty to proceed against George R. Gaither, the husband, and obtain judgment against him alone, if, upon the proof, the plaintiff be entitled to such judgment. And, upon mature consideration, we are of opinion that this application should be granted.
As stated in the opinion filed, it is certainly- true, as a well settled general principle, that in an action ex contractu against several joint debtors, the recovery must be had against all or none. But this general principle has its exceptions ; and we think, in view of the provision of the statute under which this action is brought, this case is fairly embraced within the principle of the exceptions to the general rule.
The statute of 1872, ch. 270, provides that the wife may be sued jointly with her husband, and may employ counsel and defend such action separately, or jointly with her husband. But it does not declare that, in order to bind the
The exceptions to the general rule we have stated would seem to be well established by authority, and where such exceptions apply, as where, in an action ex contractu against several, one or more of the defendants, by way of defence, plead or otherwise rely upon bankruptcy, infancy or coverture, the judgment may be had against some of the defendants, and in discharge of others. In' such cases, the matter pleaded is purely personal to the defendant relying upon the defence, which admits the making of the contract as laid, but which shows either that the contract was not binding, by reason of some incapacity in the party making it, or that it has been discharged by a certificate of bankruptcy, or other matter subsequent. Noke vs. Ingham, 1 Wils., 89. The bar, and consequent discharge, by operation of the Statute of Limitations, is purely a personal defence, and is quite analogous to the discharge under the bankrupt law.
In the case of Tuttle vs. Cooper, 10 Pick., 281, the cases upon this subject are fully examined by Chief Justice Shaw.; and while he maintained and applied the general rule in that case, he very clearly stated the exceptions to the rule, as established by the authorities. At page 291 of the volume referred to, he said: “ Upon a review of all the
Such, then, being the law, the Court below, instead of directing the jury to find their verdict for both defendants on the plea of the Statute of Limitations, should have directed the jury to find, on that plea, for the wife alone. All the prayers on the part of the plaintiff contemplated and sought to obtain a joint verdict against both defendants, and they were for that, if for no other reason, prop-
erly rejected. We shall reverse the judgment and award a newtrial, but itwillbe withoutcosts as against Mrs. Gaither.
Judgment of affirmance stricken out, and judgment reversed, and new trial awarded, but without costs to the appellant as against the appellee, Mrs. Gaither.
