Kuhns v. Turney

Mr. Justice Gordon delivered the opinion of the court, This is a scire facias by which the plaintiffs below sought to charge the separate estate' of a married woman. The claim filed sets forth, inter alia, that, “ The amount claimed to be due is $445.52, with interest thereon from the 28th of October 1876. The same being for work done and materials furnished continuously, within six months last past, for and about the erection and construction of said building and on the credit of said building, and the said work was done, and said materials furnished, with the consent of said Harriet Kuhns, wife of said Joseph Kuhns, and for the improvement of the estate of the said Parriet Kuhns.” Under the instruction of the court, a verdict was rendered for the plaintiff, the question being reserved whether the allegation in the claim that the work was done and the materials were furnished for the improvement of the estate of Harriet Kuhns, without the further allegation that such improvement was necessary, was sufficient to charge her separate estate. Afterwards the court, on motion, entered judgment on the verdict. In this we think there was error. In Murray et al. v. Keys and Wife, 11 Casey 384, and in Findley’s Appeal, 17 P. F. Smith 453, it was held, first, that, in order to charge a married -woman’s property, it must appear from the record that the debt charged is within the letter or spirit of some one of the exceptions of the Act of 1848; second, that the divestiture of a wife’s title, under a mechanics’ lien, must depend [501] upon what appears by the record, and not merely upon proof that she had consented to the contract under which the claim was filed. These cases are followed and approved in Dearie et ux. v. Martin, 28 P. F. Smith 55; Lloyd et ux. v. Hibbs, 31 Id. 306; and Shrifer v. Saum, Id. 385. It follows that if there is a failure to set forth on the record, or to establish by proof, anything that is required by the Act of Í848, in order to charge a married woman’s separate estate, the plaintiff must fail. Strictly, however, by the act itself, not only would the plaintiffs’ claim be discarded, but every one of a like character, for the common-law powers of the feme covert are not by it enlarged, except in the single case in which she is authorized t'o óontract debts for necessaries for the support of her family. It is argued, on part of the plaintiffs below, that the sixth section of the act empowers a married woman to charge her estate separate, on her own contracts, to any extent she may think necessary. This, however, results from a misconception of the proviso which forms part of that section, for it has been held by this court that that proviso relates exclusively to debts contracted by her before marriage: Clyde v. Kaiser et ux., 8 Casey 85; Bear’s Admr. v. Bear, 9 Id. 525. It has also been held that this act was not intended to take away any of the safeguards which the law had thrown around her property, and that her right to use and enjoy is enlarged, but not her power of disposition. That she may charge her separate estate with debts, created for necessary repairs or improvements, results not from the words of the statute, but rather from construction and implication. If she is to enjoy her property, it must needs be that' she have the power to put and keep it in a proper condition for use or profit, but this power arises only ex necessitate rei, and where the necessity ends there ends her power. This is as far as the present legislation permits us to go, and it is well that it should be so, otherwise, the property of married women would fall an easy prey to weak or designing husbands and crafty speculators. As it is, with the help of mechanics and material men, it is quite possible for wives to improve themselves out of their estates, and it is sincerely to be hoped that neither by construction nor by'legislation will this possibility be resolved into a probability. It has, indeed, been seriously doubted whether we have not already gone beyond the intent of the statute, and too far relaxed the common-law rule governing the contracts of married women; but it is impossible to see how, under a strict application of that rule, a feme covert could properly preserve and enjoy her estate, and it would therefore seem to be proper, in order to give the act its intended force, to allow her to contract for necessary improvements and repairs. But it will be seen, by what has been already said, that this power must be limited by the requirements of necessity. It follows, that if a mechanic or material-man would sue [502] cessfully charge the estate of a feme covert, for work and labor done, or material furnished, he must not only prove on the trial, but also set forth in his claim filed, that such work or material was necessary for the proper improvement, or repairs, as the case may be, of her separate estate. The judgment is reversed, and it is now ordered that judgment on the reserved point, non obstante veredicto, be entered for the defendants.