Stiles v. Lord

BARNES, J. Plaintiff sued defendant on a contract of indorsement of a promissory note executed by Alexander Levin and Zenona Levin, and payable to the order of defendant, and indorsed and transferred by her, before maturity, for a valuable consideration. The record shows that at the time of the execution and delivery of this note to defendant, and the indorsement by her, she was a married woman, and that she still is such; that the said note was of her separate estate. The sole question presented is whether she is liable on said contract of indorsement. This must be determined by an examination of the statutes of this territory. In 1864 (Comp. Laws, 327) was enacted chapter 32 of the Compiled Laws. It is as follows: “The real and personal estate of every female acquired before marriage, and all — 158 — property real and personal to ■which she may afterwards become entitled, by gift, grant,, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female; and shall not be liable for the debts, obligations or engagements of her husband; and may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed by her in the same manner, and with the like effect, as if she were unmarried.” Section 2 provides that any trustee of any married woman may convey to her, and pay to her, rents and profits, for her sole use and benefit. Section 3 provides that suits may be brought by and against her as if she were sole. Section 4 provides that her husband shall not be liable for her contracts. This completely emancipated her. In 1865 (Comp. Laws, 328) there was enacted “An act amendatory of chapter 32, How. Code.” The act consists of 33 sections. It does not in terms amend any particular section or clause in the former law, and has no repealing clause. It is a complete code of the law of husband and wife, so far as their property is concerned, and must be held to constitute the body of the law on that subject, and to take the place of the act of 1864, and to repeal it by implication. This law enacted for this territory the community system,—communio bonorum,—which, founded in the civil law, prevailed in France and among the Spanish people, and was brought over to the new world by them, and found its way to Mexico, Louisiana, Florida, and has spread to California, Texas, Arizona and New Mexico, and there takes the place of the common law. Packard v. Arellanes, 17 Cal. 537; Burr v. Wilson, 18 Tex. 370. It has no dower or courtesy. By that law the property of husband and wife owned before marriage, or acquired thereafter by gift, bequest or devise, or descent, shall be the separate property of each; and all property acquired after marriage other than by gift, etc., shall be the common property. The common law knows no such title to property. The husband had power to “manage and control” the separate property of the wife, but could not sell or incumber, except by a writing signed by both husband and wife. O’Brien v. Foreman, 46 Cal. 81. The husband had entire management and control — 159 — of the common property, with absolute power of sale, and the rents, and profits of separate property become'common property. Scott v. Ward, 13 Cal. 471; Noe v. Card, 14 Cal. 577; Fuller v. Ferguson, 26 Cal. 556; Wilson v. Castro, 31 Cal. 421; Yates v. Houston, 3 Tex. 452; Wilkinson v. Wilkinson, 20 Tex. 242; Wright v. Hays, 10 Tex. 133, 6 Am. Dec. 200; I Burge, Col. Law, 202; Childress v. Cutter, 16 Mo. 24. This was the system established by the law of 1865, and it remained unchanged until 1871, when was enacted the law which provides (Comp. Laws, 332) that “married women of the age of twenty-one years and upwards shall have the sole and exclusive control of their separate property; and may convey, etc., “lands,” etc., “without being joined by the husband, as fully and perfectly as they might do if unmarried.” This law repeals so much of the law of 1865 as is in conflict with it, and no more. While we concur with Miller v. Fisher, 1 Ariz. 232, 25 Pac. 651, in holding that a married woman may make a valid contract for the sale of personal property, which was the only question before the court, we cannot concur with the reasoning of that ease that the act of 1871, by repealing section 62 of the act of 1865 as in conflict with it, ex vi termini revives the act of 1864; but hold, rather, that the act of 1865 and the act of 1871 must be construed together, without regard to the act of 1864, which must rest as repealed. We held at this term (Woffenden v. Charouleau, ante p. 91, 11 Pac. 117) that the rents and profits of the separate estate of the wife and her separate property, as was held in Charouleau v. Woffenden, 1 Ariz. 243, 25 Pac. 652, and in Woffenden v. Charouleau,, 1 Ariz. 346, 25 Pac. 662. Miller v. Fisher, 1 Ariz. 232, 25 Pac. 651, held that she might make a valid contract of the sale of her separate personal property. But may she make any kind of contract of sale? At common law a married woman could not make a valid contract at all binding her. What power she now here has to contract must be found in the words of the act of 1871. The words are: she “shall have the sole and exclusive control” of her separate estate. By the act of 1865, supra, the husband had the “management and control” of this property, and he might not sell it except by instrument in writing signed by him and her. To that extent—that is, — 160 — to the extent of contracting as to the sale of her separate property in writing jointly with her husband—she had the power to contract given by the act of 1865, but no further. The act of 1871, giving her the sole and exclusive control of her separate property, is held to have enabled her to sell without her husband jointly, and without doing so in writing, as to her personal property. We are now asked to say that if she sells a chose in action, that is, a promissory note,—and indorses it with her Dame, that she has not only sold the note, and made a valid transfer of the same, but that, in addition thereto, she has made a contract of indorsement according to the custom of merchants; and that if the note be not paid by the maker, that recovery can be had against her on such contract of indorsement. We are not prepared to go that far. We think the former cases have gone far enough. It would be a long stretch of construction to say that the word “control” is to be held to repeal the common law, which prohibits a wife from making any contract, and to enable her to make any sort of a contract, so that it be as to her “separate property.” This would be nothing more or less than judicial legislation.. To hold that she may make a simple contract of sale of her separate property seems a necessary incident to the “control” of her property. Somebody should have this power. The act of 1865 gave it to both' jointly, and it is fair construction to hold that the act of 1871 gave this power to her; but we are not prepared to extend it beyond such a simple contract as if necessary to the sale of personal property. The contract of indorsement is not a necessary or essential contract for the sale of a promissory note. She may transfer her title without making this contract of guaranty. The argument of convenience so forcibly urged cannot help us to construe a statute. That is an argument to be addressed to the law-making power. The state of New York, in 1848-49, enacted one of the first of the modern married women’s statutes. That provides that any married woman may take by inheritance, gift, etc., and hold to her sole and separate use, and convey and devise, real and personal estate. In the case of Yale v. Dederer, 18 N. Y. 265, 72 Am. Dec. 503, that law came before the — 161 — courts of that state for construction, and that is the leading ease on the subject. In that case a married woman had executed a promissory note, with her husband as his surety. The court held that the contract was void, and that it could not be made a charge upon her separate estate in equity. The learned justice in his opinion says: “A married woman may ‘convey and devise’ real and personal property as if she were unmarried. I think it is plain, however, that the statute does not remove the incapacity which prevents her from contracting. She may convey and devise her real and personal estate, but her promissory note, or other personal engagement, is void, as it always was, by the rules of the common law.” The case was again before that court, (22 N. Y. 450, 78 Am. Dec. 216,) and in a very able opinion by Shelden the doctrine of the case was again declared. This case -created a profound impression, provoked much discussion, and was met with serious dissent, not so much however, as to its construction of the statute, as its refusal to make the debt an equitable charge upon her separate estate. Todd v. Lee, 15 Wis. 400; Grapengether v. Fejervary, 9 Iowa, 163. 74 Amer. Dec. 336; Mayo v. Hutchinson, 57 Me. 546; Cummings v. Sharpe, 21 Ind. 331; Major v. Symmes, 19 Ind. 117; Miller v. Newton, 23 Cal. 554; Glass v. Warwick, 40 Pa. St. 140, 80 Amer. Dec. 566. The supreme court of Massachusetts (Willard v. Eastham, 15 Gray, 328, 79 Amer. Dec. 366) came to the support of New York in a similar case in a very able opinion, and the current of decision seems to have been turned. Perkins v. Elliott, 22 N. J. Eq. 127; Cozzens v. Whitney, 3 R. I. 79; Jones v. Crosthwaite, 17 Iowa, 393; Maguire v. Maguire, 3 Mo. App. 458; Hudson v. Davis, 43 Ind. 258; Chatterton v. Young, 2 Tenn. Ch. 768; Nelson v. Miller, 52 Miss. 410; Maclay v. Love, 25 Cal. 368, 85 Amer. Dec. 133; Veal v. Hurt, 63 Ga. 728; Saulsbury v. Weaver, 59 Ga. 254; Robertson v. Wilburn, I Lea, 633; State Savings Bank v. Scott, 10 Neb. 83; 4 N. W. 314; Harris v. Finberg, 46 Tex. 79. If the words ‘ ‘ convey and devise, ’ ’ which give to a married woman the power of disposing of and selling her real and personal estate, do not empower her to make a valid promissory note or other personal engagement, it cannot be con — 162 — tended that the words “use and control” in our statute do so. It was held in Indiana (Moreau v. Branson, 37 Ind. 195) that, under such statutes a wife’s indorsement of a bill or note is inoperative beyond divesting her of her title therein. This is exactly our position in this case. Neither may she make a contract of suretyship or guaranty. Russel v. Bank, 39 Mich. 671, 33 Am. Rep. 444; Perkins v. Elliott, 22 N. J. Eq. 127; Kohn v. Russell, 91 Ill. 138; Dunbar v. Mize, 53 Ga. 435. These married women’s acts are to be construed liberally, to further the object to be obtained. In this territory the object plainly was to give to her the use and benefit of her separate property controlled by herself. Whatever powers are a fair and necessary incident to such use and control were given to her. But the law did not empower her to contract generally. The contract of indorsement is not necessary to a sale or transfer of a promissory note, and we cannot, by construction, extend it that far. Judgment reversed and cause remanded.