42 N.J.L. 198 | N.J. | 1880
To substantiate her title and thus manifest her right to the property replevied, the plaintiff was compelled to produce and prove the chattel mortgage-given to her by her husband. These chattels had never been in her possession, and consequently the plaintiff had no standing on the legal merits of the case, unless she could establish the validity in law of this conditional sale. That this transfer was enforceable in equity, and that the title of the plaintiff would have been protected in that forum against the claims of her husband’s creditors, no one will deny, the only question being, whether such transfer can be recognized and effectuated by a court of law.
It is obvious at a glance that if such legal recognition is to be accorded to this transaction, such a consequence must proceed wholly from legislation, for at the common law, this sale proceeding directly from the husband to the wife, was an absolute nullity. Such has been, within the prevalence of that system, the invariable judicial declaration whenever the subject has been presented for consideration. “Baron and feme,” says Lord Coke, “ be one person in law, so as neither of them can give any estate or interest to the other.” Co. Litt. 188, a. The modern authorities utter the same expressions. 1 Bright. H. & W. 29. In Wallinsford v. Allen, 10 Peters 583, the court sustained in equity a conveyance of slaves by a husband to his wife in consideration of a discharge of a decree for alimony, remarking that, “ agreements between husband and wife, during coverture, for the transfer from him of property directly to the latter, are undoubtedly void at law.” The same rule is expressed with equal directness by Chancellor Green in the case of Skillman v. Skillman, 2 Beas. 407, and by Mr. Justice Depue iu Horner v. Webster’s Ex’r, 4 Vroom 387. The doctrine is treated as fully settled by Judge Story, in his treatise on Equity Jurisprudence, § 1372. The result is that, upon admitted principles, this mortgage, considered irrespectively of any legislative innovation, would have been, for the purposes of a common law action, wholly inefficacious. The
On this head I have found no difficulty. In the briefs of counsel this question is discussed on the basis of the large capabilities conferred upon married women by the recent laws enacted on that subject, and with reference to the policy of such legislation; and it may well be that if the present inquiry was open to such a range of considerations and deductions, to reach a satisfactory conclusion would not be free from embarrassment. I think there is much force in the remarks of Mr. Bishop, in his work on the Law of Married Women, § 368, that it ought, in the absence of special provision, to be held under statutes of this class, that whenever general power of contract is given to the wife, to the extent of such power the husband and wife can contract together. But although by the statute of this state entitled “An act to amend the law relating to the property of married women,” passed March 27th, 1874, (Hev.,p. 636,) a general authority is conferred upon a woman under coverture, to acquire and hold property and to enter into contracts, as though she was a feme sole, still it is expressly provided that such authority does not extend so far as to empower her to contract with her husband. The restriction to which I refer is contained in Section 14 of this law, and is comprehended in its last clause, which is in these words: “ Nor shall anything herein enable husband or wife to contract with or to sue each other, except as heretofore.” This language is not uncertain, and the provision is perspicuous with respect to its policy. The object was to leave the husband and wife, touching their capacity to bargain together, on the ancient footing of the common law. The clause is virtually a legislative declaration that, as heretofore, they may enter, inter sese, into equitable agreements, but not into legal agreements. It was obviously intended that the court of equity should, as it had always done, prior to the amplification of the rights of the wife, exercise a supervision over the engagements of married persons. Nor is it deemed that such an adjustment was an unwise
Nor have I found anything that militates with this view in any of the eases cited in the brief of the counsel of the plaintiff. None of such decisions appertain to statutory provisions similar to those that are in force in this state. In the main they are mere deductions finding a power in the wife to trans
Nor are the adjudications cited from the Kansas reports at all to the present purpose, as in the leading case of Going v.
The Circuit Court should be advised that this action cannot, be sustained.