Spearman v. Ward

Mr. Justice Paxson delivered the opinion of the court, These cases involve the same principle and were argued together. They present tiie question whether the real estate in Pennsylvania, of a married woman domiciled, anil doing business in the State of Ohio, is liable for her general debts contracted in the course of said business. 5 It was conceded upon the argument that if by the law of the State of Ohio the common law disabilities of married women have been removed, and the defendant is clothed with a general power of contracting,-the same as a feme sole, the plaintiff would be entitled to obtain a judgment against her here, which could be enforced by execution as in other cases. It is very certain that’if the defendant' had carried on business in this state, and had given the notes here, there could be no recovery. The reason is that the note or other obligation of a married woman here is void, as at common law. She is permitted to make certain contracts, which I need not specify, for the benefit of her separate estate, which may be enforced against her, not because they are valid and binding contracts at common law, but for the reason that they are expressly authorized by statute, of being beneficial to her, equity requires them to be enforced. The statutes of the State of Ohio attached to- the special verdict do not confer upon a married woman a general power of contracting. They do not authorize married women to enter into general business and bind themselves personally for notes given. The Ohio Statutes as construed by the courts of that state, do not remove the common law disability of married women to make contracts (except in a few specified cases of which this is not one). They do provide that where married women engage in business, and execute notes in carrying it on, a court of equity will hold their separate estate liable, so far as it is found within the state, in order to prevent a fraud upon creditors. In other words, when she has a separate estate, and [641] contracts upon the credit of it, equity will not allow the creditor who has parted with his property or money on the faith of it, to be defrauded. That sections 4,996 and 5,319 of the Ohio Code, adopted in 1880, and annexed to the special verdict do not, and were not intended to enlarge the powers of married women and to remove their common law disabilities, clearly appears from the decisions of the Supreme Court of that state. They were intended to prescribe the instances in which .they may sue and be sued alone, and to alter, and perhaps enlarge the remedy: Jenz v. Gugel, 26 Ohio St., 527 ; Allison v. Porter, 29 Id., 136.. In Avery v. Van Sickle, 35 Id., 270, it was said by Boynton, J., in delivering the opinion of the court: “The cases of Jenz v. Gugel, and Allison v. Porter are decisive of the question that no new cause of action was created (by the code), and the character of the action was in no wise changed; that it is plain that it was not intended to remove the incapacity of a married woman to enter into contracts binding at law.” In Phillips v. Graves, 20 Id., it was held that a feme covert may charge her separate estate, at least to the extent that such liability may be incurred for the benefit of such separate estate; that such power is only limited by the terms of the instrument creating such estate, or by implication arising therefrom; that the intention to change the separate estate may be implied by the giving of a bond or note; that courts of equity will enforce payment out of the separate estate through a receiver, 1st, by sequestering the personal property2d, by sequestering the rents and profits of the realty, and, 3d, by a sale of the real estate if necessary. In Levi v. Earl, 30 Id., 147, the syllabus, which is the law of the case, reads as follows: “ The ground upon which a court of equity charges a married woman’s separate estate for her general engagements in the absence of a valid contract binding the same, or of an express charge thereon, is not because her contracts have any validity, nor by way of appointment or charge, but because the circumstances are such that equity decrees it to be just that they should be paid out of said estate.” That case rules that under the statute the separate estate of a married woman is liable for debts contracted in improving, repairing or cultivating it. In such cases the wife is liable in an action at law, but all other obligations are void as at common law. It was said by the court: The Jus clisponendi which attaches in Ohio to the estate of a married woman is largely regulated by statute. She cannot convey or mortgage or lease for a longer period than three years without consent of her husband.....all contracts made by her concerning her separate estate other than for labor and materb als for improving, repairing and cultivating the same are sub [642] ject to her disabilities as a feme covert.....except where a case is made out for a court of equity to charge her separate estate.” In Rice v. The Railroad Co., 32 Ohio, it was held that the separate property of a married woman was not liable for her general engagements, in the absence of a contract valid in law to bind the same. In the recent case of Payne v. Thompson,decided in March, 1886, and reported in the Ohio Law Journal of April 5th, the court says: “Except so far as capacity has been given to her {feme covert) by statute to bind herself by her contracts, they are void......It should be borne in mind that the provisions of sections 4,996 and 5,319 of the Revised Statutes, were not intended to enlarge or vaiy the liabilities of married women, but relate merely to the form of the remedy.” Many other cases to the same.point might be cited were it necessary. A careful examination of the authorities cited for the plaintiff: fails to show any that break the force of the foregoing. None of them holds that by the law of Ohio a married woman can be held'personally on her contracts generally. As I understand the proceedings in Ohio under the Revised Statutes it is practically a proceeding in rem not against the feme covert personally or on the footing of a personal contract. If she has given a note or contracted a debt for the benefit of her separate estate, or under such circumstances as indicate an intention to charge her separate estate, the proceeding is by petition with a prayer to have the debt declared a lien upon the particular property, and to make the same subject to its payment. In such cases if equity requires the particular order to be made it is done. How widely this differs from an absolute personal liability is apparent. It is true in Patrick v. Littell, 36 Ohio St., 79, the court allowed a personal judgment to be recovered against a married woman. But it was upon a contract affecting her separate estate, and where the authority to contract exists there is no doubt that under the Code, a general or personal judgment may be given. But the difficulty which underlies the plaintiff’s case, and confronts him at every turn, is that the Revised Statutes of Ohio do not authorize married women to contract generally and personally. With a few exceptions her powers in this respect remain as at-the common law. The judgment in each case is affirmed.