Cochrane v. Cochrane

Briscoe, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Dorchester County, overruling a demurrer to a bill in equity, with leave to the defendant to file an answer to the bill of complaint within ten days from the elate thereof. *531 The bill is filed by a married woman against her husband, for an accounting and a discovery of certain moneys, securities and properties in bis bands and possession, belonging to her, and to pay over to her all sums of money wrongfully received by him for her and to deliver to her such securities and other property, now in his hands. The MU in substance alleges that the plaintiff is the wife of the defendant, having been married to him in the City of Cumberland, Maryland, and that they resided there for a number of years; that she has been for a short timo living apart from her husband, making her home in Baltimore City, and he residing in Dorchester County, Maryland. It is further alleged that, in the year 1906, the defendant, without the consent of the plaintiff, wrongfully acquired and took possession of property and securities of the plaintiff, consisting of certain promissory notes, and also certain mortgages on real estate situate in Allegany County, Maryland; these notes and mortgages, amounting in the aggregate to the sum of $10,390, and to the best of the knowledge and belief of the plaintiff executed by and given by certain persons, set out in tbe bill. Tbe bill also alleges that the defendant, since tlie wrongful acquisition of bis possession of her property in 1906, down to the present time, has controlled and managed the same, without rendering to your plaintiff a proper account of the principal and income derived from it, and without making to her any proper payment of the principal received by liim or tbe interest collected ther'eon. Tbe bill further charges that the defendant lias paid to the plaintiff various sums of money, at different times, during the years from 1906 to tbe present time, that the defendant rendered to the plaintiff a statement purporting to give tbe sums of money received and the moneys expended by him, between tbe dates July 18th, 1906, and April 30th, 1918, but tbe statement was manifestly inaccurate and incorrect; that be also paid to her, on the 30th of June, 1920, *532 the sum. of $2,727.51, hut that this payment was not a settle^ ment in full, hut there is still a large sum of money rightfully clue to her, the payment of which she has demanded, hut which has been refused hy him, and he has also refused to restore and deliver to her the securities now in his possession and belonging to her. The prayer of the hill is, first, that the defendant may on oath answer the hill, and discover and set forth in detail all sums received hy him, and all disbursements made hy him, together with the moneys or securities of the plaintiff now in his possession, accounting from the first day of July, 1906, to tlie date of this hill, and account with the plaintiff for the same; second, that the defendant may he decreed to pay over unto the plaintiff all sums of money due to her on account of the property wrongfully taken charge of hy him; and third, a prayer for general relief. The defendant filed a demurrer to the hill, and assigned two grounds as cause of demurrer: first, that the plaintiff is the lawful wife of the defendant, as alleged in the bill, and cannot sue her husband; and second, that no express promise is alleged in the hill to repay or to refund the moneys alleged to have been taken possession of hy the defendant. It has long been settled, in this State, that the relation of debtor and creditor may exist between husband and wife, and as, under the Code, the wife is vested with the legal title to her separate estate, she can maintain an action for the recovery, security or protection of her property. Barton v. Barton, 32 Md. 214; Odend’hal v. Devlin, 48 Md. 439. In Wilson v. Wilson, 86 Md. 638, decided on January 5th, 1898, it was said that the weight of authority seems to be that either the husband or wife can sue the other in equity for protection of his or her property. In Masterman v. Masterman, 129 Md. 176, decided on June 23rd, 1916, it is distinctly said that there would seem to' he no doubt about the right of the wife to sue the husband in equity. Section 5 of article 45 authorizes married women *533 to sue for the recovery, security or protection of their property, and if section 20 of that article be not applicable, it would seem that the plaintiff could sue her husband as well as any other person for the protection of her property under section 5 of the article. Hill v. Boland, 125 Md. 116; Taylor v. Welslager, 90 Md. 409; 1 Poe, Pl. & Pr., secs. 311-317; Lyell v. Walbach, 113 Md. 578. It will be seen that a complete change was made and effected in the law as to the rights of married women in this State by chapter 157 of the acts of 1898, and by chapter 633 of the acts of 1900, and now embraced as sections 5 and 20 of article 15, entitled “Husband and Wife,” Bagby’s Code, vol. 1, page 1163. By section 5 of article 15 of the Code, it is provided: “Married women shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue upon their contracts, 'and also to sue for the recovery, security or protection of their property, and for torts committed against them, as fully as if they were unmarried; contracts may also be made with them, and they may also be sued separately upon their contracts, whether made before or during marriage, and for wrongs independent of contract committed by them before or during their marriage, as fully as if they were unmarried; and upon judgments recovered against them, execution may be issued as if they were unmarried; nor shall any husband be liable upon any contract made by his wife in her own name and upon her own responsibility, nor for any tort committed separately by her out of his presence, without his participation or sanction.” And by section 20 of article 15 of the Code (section 19A, chapter 633, acts 1900), it is also provided that: “A married woman may contract with her husband or with any other person or persons in the same manner as if she were a feme sole, and upon all such contracts, partnership or otherwise, a married *534 woman may sue and be sued as fully as if she were a feme sole.” It was clear, we think, both under the Code and upon the authorities that have been cited, that even prior to the passage of the acts of 1898 and 1900, now sections 5 and 20 of article 45 of the Code, that either the wife or the husband could sue the other and maintain an action in a court ,of equity for the protection of his or her property. It. seems also now well settled, upon a proper construction of sections 5 and 20 of article 45 of the Code, set out herein, that a married woman in this State may sue for the recovery, security, or protection of her property 'as fully as if she were unmarried, either in a court of equity or in a court of law, and she may also be sued separately upon her contracts, and for wrongs independent of contract committed by her, as fully as if she were a feme sole. By section 20 of article 45 of the Code, it is specially provided that a married woman may contract, with her husband, or with any other person, in the same manner as' if she were a feme sole, and upon all such contracts or otherwise she may sue or be sued as fully as if she were a feme sole, and this means that she may sue or be sued either in a court of law or a court of equity, as the nature of the case may require. So without stopping to. review the averments of the bill, which have been clearly stated in the previous part of this opinion, we think, the facts alleged therein are sufficient to sustain the relief sought by the bill, if they can be supported by proper proof, and the court below, therefore, committed no error in overruling the demurrer and requiring the defendant to answer the plaintiffs bill. For the reasons stated, the order of the court below will be affirmed. Order affirmed, the cause remanded, with costs to the appellee.