52 Md. 297 | Md. | 1879
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
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,
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
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
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.