Real Estate Inv. Co. v. Roop

Opinion, Me. Chief Justice Paxson: This was an appeal from the order of the court below refusing’ to open a judgment entered by the Real Estate Investment Company v. Oliver Roop and Fanny C. Roop, appellants, in the sum of $680. The said Fanny was the wife of the said Oliver Roop, but this does not appear on the face of the note upon which the judgment was entered. The petition which was filed in the court below is not printed in the paper-books; hence we have no certain knowledge of the specific grounds upon which the judgment was asked to be opened, and we might well dismiss the case for this reason alone. We learn from the docket entries, however, that the application was on [501] behalf of both defendants, and from the arguments of counsel, (a) that the note was usurious, and (5) that the defendant, Fanny C. Roop, was a married woman, and as such had no power to bind herself by a judgment note. As to the first proposition. The depositions show that only $500 was loaned to the defendants, but, as the plaintiff concedes this, and also alleges that it was a loan with the judgment note as collateral, and that no more than the $500, with interest, is claimed, there would seem no good reason why the court below should open the judgment and order an issue to try a fact which is not disputed. The second ground of relief is more serious. On behalf of Fanny C. Roop it was contended “that, as the record of the judgment reveals no contract within the power of a married woman to make, it is irregular as to Fanny Roop, and cannot stand.” The judgment is entirely regular upon its face, as the record does not show that Fanny C. Roop is a married woman. The depositions do show it, however, and the fact is not denied. The plaintiff contends that under the act of June 8, 1887, P. L. 332, known as the Married Person’s Property Act, a married woman has the power generally of confessing judgments, and refers us to the third section of said act as conferring it. Said section is as follows: “ A married woman may make, execute and deliver leases of her property, real and personal, and assignments, transfers and sales of her separate personal property, and notes, bills, drafts, bonds or obligations of any kind, and appoint attorneys to act for her, and it shall not be necessary for her husband to be made a party thereto or joined therein.” This language is certainly very broad, and is a part of the legislation, commencing in 1848, the object of which, evidently, is to emancipate married women from the restraints of the common law to a certain extent, and to enable them to act as femes-sole in respect of their property. It is not necessary for us to express an opinion of the wisdom of this legislation. We have followed the legislature cautiously, and have, as was our duty, given effect to these acts to the extent of their plainly expressed meaning; but it is so radical in its character, and so wide a departure from the common law, that we have been [502] careful not to extend the force of any of these acts by judicial construction. The act of 1887 certainly does go very far in enlarging the powers of married women. The first section gives them the power of a feme-sole as to the acquisition, ownership, possession, control, use, or disposition of property of any kind in any trade or business in which, they may engage, or for necessaries, and for the use, enjoyment, and improvement of their separate estate, and to “ make contracts of any kind, and to give obligations binding herself therefor.” The only restriction upon the powers thus conferred is found in the proviso at the end of the section. It is as follows: “ Provided, however, that a married woman shall have no power to mortgage or convey her real estate, unless her husband join in such mortgage or conveyance.” The second section declares that a married woman may bind herself by contracts relating to any trade or business in which she may engage, or for necessaries, and for the use and enjoyment of her separate estate, and may sue and be sued, etc., in all respects as if she were a feme-sole: “ provided, however, that nothing in this or the preceding section shall enable a married woman to become accommodation indorser, guarantor, or surety for another.” Then follows the third section, which I have already quoted. It was contended that this section gives her the general power to contract, which would, of course, include the power to confess a judgment. If, however, it was intended to confer this broad power, and place a married woman on the same plane' with a feme-sole, it could - have been done in a few lines, declaring that hereafter a feme-covert should have the same power to contract debts as a feme-sole. For such a purpose it was unnecessary to frame an act with seven sections. We do not think it was intended to confer a power to contract generally. Of what use would be the restriction contained in the first section, that she shall have no power to mortgage or convey her real estate without her husband joining in such mortgage or conveyance, if she may bind her real estate by confessing a judgment for general purposes ? The third section must be read in connection with the other sections, and the act considered as- a whole. Viewed in this light, it un [503] fetters a married woman, subject to the restrictions before mentioned, for three purposes, viz.: (a) Where she engages in trade or business ; (5) in the management of her separate estate; and (e) for necessaries. For any of these purposes she may bind herself and her estate or business by her contracts, and, I have no doubt, may lawfully confess a judgment. But beyond this we do not think the act confers any power. It is entirely proper that the law should clothe her with sufficient power to properly manage her separate estate; and when it authorizes her to embark in business it is right that she should be held to her contracts, which can only be done by authorizing her to make such contracts. So in regard to necessaries. If she may purchase them, she should be authorized to bind herself and her estate for them, in the usual manner, and by the usual forms by which contracts are made by persons sui juris. But we are not disposed to say that for every purpose she may make contracts, and bind her estate generally as may a feme-sole. The legislature must say so in language too clear to be misunderstood, before we will subject the estates of married women to such a peril as this. It was conceded that this judgment was given by a married woman. It was not pretended that it was done in the management of, or for the benefit of her separate estate, or in the prosecution of any business in which she was engaged, or for necessaries. On the contrary, if not given as surety for her husband, it was given upon his importunity and to aid him in liis business, one of the very perils from which the law ought to protect a married woman. The judgment having been confessed without authority, is void as to Fanny C. Hoop. The order of the court below is reversed as to Fanny C. Hoop, and the judgment against her is stricken from the record. Mr. Justice Mitchell dissented.