Trustee process — Husband and wife. I am of opinion that this trustee must be discharged. It appears that Mrs. Russell, having money of her own, which by the statute she was entitled to hold against the creditors of her husband, and all the world, loaned some three hundred dollars of it to her husband. It was not a gift, but, as the case distinctly shows, a loan, and that most undeniably implies a valid promise by the husband to repay it. Indeed, the plaintiff's counsel in their brief admit that the notes in question were conveyed to her in payment of a debt honestly due her, precisely as they would have been to any other person. This, of course, shows that, as the law now is in this state, husband and wife may contract together, the common law in this particular having been wholly charged by statute.
I should not be inclined, however, to decide the case on this admission of counsel, unless the admission appears to be in accordance with the law. But I think it is. If a married woman may lease her land to her husband, as was held in Albin v. Lord, 39 N.H. 196, why may she not loan him her money? And since the statute provides that every woman shall hold to her own use, free from the interference or control of any husband she may have, all property, c. (Gen. Stats., ch. 16, sec. 1), and shall have the same rights and remedies in relation thereto as if she were unmarried (id. sec. 13), why may she not do either?
It is difficult to conceive what terms the legislature could have used *Page 281 to show more unmistakably their intention to obliterate entirely, in this respect, the idea of the common law, that husband and wife are a legal unit. As was said, in effect, in Houston v. Clark, 50 N.H. 482, the statute, unquestionably removes all disabilities of the wife so far as regards her separate property, and gives her the same rights and remedies with respect thereto as though she were sole.
The logical result seems to be, that the status of marriage interposes no obstacle in the way of either party maintaining a suit at law against the other, in respect of those contracts which the wife is empowered to make; for a contract in form is no contract in any legal sense, unless the law, while recognizing it as valid, furnishes a remedy for its enforcement.
Such right of action was, indeed, unequivocally recognized in Claremont Bank v. Clark, 46 N.H. 134; for, if a judgment may be had against the wife as trustee of her husband, it must be for the reason that she has in her hands money, c., of her husband, for which he himself would have been entitled to judgment had he, instead of his creditor, brought the suit; and the decision is clearly put upon that ground.
If, then, the defendant owed a debt to his wife, which he was legally bound to pay, there was no reason why he might not use these notes for that purpose as well as any other property or money which belonged to him, and the title thereto would pass to her unless sec. 14 is to have the construction claimed for it by the plaintiff's counsel. That section is, — "Nothing in this chapter contained shall be construed to empower any husband to convey any of his property to his wife, in any other manner or with any other effect than if the same had not been passed."
But I think this was intended to guard against voluntary conveyances for the purpose of defrauding creditors, and that it cannot be held to prohibit the transfer of title in property or money from husband to wife for the purpose of paying an honest debt.
The plaintiffs counsel deprecate this wide departure from the doctrines and practice of the common law. Fortunately, the policy or impolicy of the law is not a matter we are to consider. We are to declare our judgment of its meaning and application, and if a mistake is made in ascertaining the legislative intent, the legislature is always at hand to correct it.
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