Worthington v. Cooke, 52 Md. 297

Worthington v. Cooke

52 Md. 297 | Md. | 1879

Alvey, J.,

delivered the opinion of the Court.

This is an action brought on a separate covenant of a married woman, contained in a lease, against the lessee and her husband jointly. The covenant is to pay a certain annual rent for the premises, and all taxes thereon; and the breach alleged is the non-payment of rent accrued due, and certain taxes that have been assessed.

The defendants demurred to the declaration; and the grounds of the demurrer are, according to the contention of the defendants, 1st, that a married woman is not suable at law upon breach of a covenant made during coverture; and, 2nd, that if the action he maintainable against the wife, it was error to join the husband.

Whether these positions or either of them he well taken, depends upon the proper construction of the second section of the Act of 1867, ch. 223. That Act adds two sections to Art. 45, of the Code; and by the first of these additional sections, it is provided that, in all cases of leases for definite terms to married women, if the rent reserved remain in arrear for ninety days, the landlord shall have the right to levy distress for such rent, “in the same *307manner as if the lessee was a feme sole;” and if there he no sufficient distress found upon the premises, he shall then have the power to make re-entry, or bring such action for the recovery of the demised premises, as he might do if the lessee were a feme sole, and had covenanted for the payment of the rent, and to suffer such re-entry to be made. The second section of the Act, the construction of which is particularly involved in this case, reads thus: “In all deeds hereafter made to married women of real estate or chattels real, it shall be competent for the grantee or lessee to bind herself and her assigns, by any covenant running with or relating to said real estate or chattels real, the same as if she ivas a feme sole.”

As a general principle it is incontrovertibly true, that, at common law, a married woman cannot contract so as to make herself liable; though upon the principles of a Court of equity she may contract so as to bind her separate estate; and it is equally true, as a general proposition, that a feme covert cannot be sued alone at law. But to both these general propositions there have been, from an early period in the history of the common law, certain exceptions allowed, not only for the benefit of the wife, but for the benefit and protection of those with whom she might contract. As, for instance, if the husband was banished or had abjured the realm, (Co. Litt., 133 a;) or if the husband be an alien residing abroad; in such cases, the wife would not only have the capacity to contract, but she would be capable of suing and of being sued alone, as a feme sole. Deerly vs. Duchess of Mazarine, 1 Ld. Raym., 147; Walford vs. The Duchess of Pienne, 2 Esp. N. P. Rep., 554; De Gaillon vs. L’Aigle, 1 Bos. & Pull., 351; 2 Kent Com., 155. There is nothing, therefore, very anomalous, even at the common law, in a married woman being allowed the capacity of and treated as a feme sole, under special circumstances.

In the cases just mentioned the power to contract, and the incidental right to sue and liability to be sued alone, *308were allowed from the force of circumstances and the necessity of the case; but the right of a feme covert to contract in reference to her estate, and the consequent right to sue and her liability to be sued, have been greatly extended in recent times by statute; and the statute under consideration is only an instance of the amplification of that power. But, while the statute before us is explicit in conferring the power to contract, and in declaring that the covenants authorized to be made shall be binding on the feme covert as if she was in fact a feme sole, it is insisted that, as the statute is silent as to the remedy for the enforcement of the covenants, the common law principle applies, that a feme covert is not suable at law on a contract made during coverture, and that the only remedy is by bill in equity. Whether this be so or not depends upon the intention of the Legislature, as we may gather that intention from the terms and provisions of the statute.

Why should the remedy be by bill in equity rather than by action at law on the covenant ? The construction of the covenant and extent of liability thereby incurred are purely legal questions, and a Court of law is the proper forum in which to ascertain and award the quantum of damage sustained by reason of the breach of the covenant. As will be observed, the statute creates no specific lien or charge upon the property of the party making the covenant, to be enforced in a Court of equity. The covenant creates a personal obligation, and the party making it is bound not as a feme covert, but as if she were a feme sole. Any property that she may hold under the provisions of the Code as her separate estate may be made liable for the satisfaction of any recovery that may be had on the covenant. A Court of equity, in affording relief against the separate estate of a married woman, does not proceed against her in personam, but against the property only. No mere personal decree can pass against her, unless ex*309pressly authorized by statute. Francis vs. Wigzell, 1 Madd., 258; Aylett vs. Ashton, 1 M. & Cr., 105; 2 Sto. Eq., sec. 1397. Here, by the terms of the statute, she has hound herself and her assigns, and the remedy fit and appropriate for the enforcement of such an obligation is an action at law. The remedies given by the first' section of the statute are purely of a legal character, and the party is tobe proceeded against as if she were a feme sole, and we can perceive no possible reason for supposing that the Legislature intended a difierent character of remedy for the enforcement of the covenants authorized to be made by the second section of the statute. The covenant here being for the payment of rent and taxes, it is a covenant that runs with the land, and is, therefore, embraced by the terms of the statute, (Mayhew vs. Hardesty, 8 Md., 479; and Lester vs. Hardesty, 29 Md., 50;) and we think the remedy upon it is by action at law.

Then, the next question is, whether it was error to join the husband as co-defendant with the wife. Upon this question, we are clearly of opinion he should not have heen so joined. The wife was authorized to enter into the covenant as if she had been a feme sole. She is therefore, in respect to the covenant and the remedies thereon, put upon the footing of a feme sole. She was authorized to make the covenant without the joinder of her husband, and without any reference whatever to his approval or disapproval; and that covenant is alone binding upon her and her assigns. If the husband was required to be joined as a defendant he would not only be subject to costs, but, according to the principles of the common law, the judgment would be joint, and he would be made liable for the breaches of a covenant to which he was not a party, nor bound by any privity whatever. This would be manifest injustice, and a result that the statute never was intended to produce. Hot being himself a party to the contract, if, by being made a co-defendant in an action *310for the breach, he could he made liable for the damages recovered, he would he entirely at the mercy of his wife and those with whom she might contract; and notwithstanding the wife he given the power to contract as if she were a feme sole, he would, in effect, he made to stand surety for the performance of the covenant, even though it he entered into against his positive remonstrance. The wife being authorized to contract as if she were a feme sole, the action must he maintained against her as if she in fact possessed the capacity of that status, and without reference to her coverture.

(Decided 15th July, 1879.)

Concurring with the Court below in sustaining the demurrer to the declaration, we shall affirm the judgment; hut we shall remand the cause under sec. 16 of Art. 5 of the Code, as modified by the 8th rule respecting appeals to the end that, by proper amendment, the cause may he tried upon its merits.

Judgment affirmed, and

cause remanded.