Lennox v. Eldred

By the Court, E. Darwim Smith, J. Two questions are presented upon this appeal. 1. Was the defendant Theresa liable upon the promises to pay her former hus [412] band’s debt to the plaintiffs? Upon this question I think the judge erred, at the trial, and that the .exception to the decision that she was so liable was well taken. She was not liable upon a special promise to pay her husband’s debt, made in his lifetime, because it was not made in writing, and in such form as to bind her separate estate, if she then had any such estate. The case of Shuler v. Nelson, (4 Lans. 114,) is conclusive on this point; and a promise to pay such debt after the decease of her husband likewise was not a valid promise. It was at best a simple promise to pay the debt of another, and was without consideration, and was void by the statute of frauds. (Id. White v. Story, 43 Barb. 124.) The other question relates to the second cause of action stated in the complaint and duly proved at the trial. The defendant Theresa, after the death of her first husband, and before her marriage to her present husband, purchased goods of the plaintiffs, as proved or admitted at the trial, to the amount of $22.98, for which she was clearly liable. The only question in respect to this part of the cause of action relates to the form of the remedy; whether her husband was a proper party with her as defendant. At common law, the husband was liable for the debts of his wife contracted before marriage, and remains thus liable unless discharged by statute. The statute of 1848 for the protection of the property of married women, declares that the real and personal property of any female who may thereafter marry, which she owned at the time of marriage, and the rents, issues and profits thereof, shall not be subject to the disposal of her husband, nor liable for his debts, but shall continue her sole and separate property as if she were a single female. So far as the liability of the husband for the debts of his wife before marriage, depended upon the fact that upon the marriage he took title to all her [413] personal property, that ground, or reason of his liability is clearly taken away by this statute; but the liability of the husband at common law did not rest upon the sole ground that he took her personal property; he was liable for her debts under all circumstances, independently of this fact. He was liable if she had no property, as well as if she had large possessions. He was liable to be sued for her debts, and when so sued she was a necessary party, but the execution went against him alone. This is now changed by the act of 1853, (Less. Laws of 1853, ch. 576, p. 1057,) which declares that the action may be maintained against husband and wife jointly for any debt of the wife contracted before marriage, but the execution on any judgment in such action shall issue against, and such judgment shall bind, the separate property and estate of the wife only, and not that of the husband. The husband may be joined as defendant, under the statute. [Fourth Department, General Term, at Buffalo, June 3, 1873. Mullin, Talcott and S. D. Smith, Justices.] The charge of the county judge on this point was therefore correct; and the exception that the husband was not a proper party, and could not be joined as a defendant in the action, not well taken. It follows from these views that the judgment should be reversed, except in respect to the said sum of $23.98, admitted at the trial to be due from the defendant Theresa; and for that sum it should be affirmed, with interest, from the time of the trial before the justice, ¡November 10,1871. The appellant having succeeded in the chief matter of contest in the action, I think should have costs upon the appeal.