Gibson v. Marquis

WALKER, J. The judgment of the court below must be reversed ; and we therefore proceed to consider the various questions which will probably arise on the trial of the case in the court below, and to the decision of which we are invited by the counsel on both sides. The contract of a married woman, at common law, was void ; and no'judgment, for a debt' contracted by her, could be rendered against her personally. Her separate estate could, in equity, be subjected to the payment of the debt. The question in this case is, whether or not the common law is so far changed by the Code, that a married woman can bind herself, by a contract for the purchase of land, so that she may be proceeded against at law for the debt. Section 2131 says: “Husband and wife must be. joined, either as plaintiffs or defendants, when the wife'has an interest in the subject-matter of the suit; unless the suit relate to her separate estate, when she must sue or be sued alone.” This statute pertains to the remedy for and against a feme covert, but does [672] not, of itself, affect her power to contract. So far as it is concerned, the wife’s capacity to bind herself by a contract, pending her coverture, is untouched, and remains as at common law. Whether there may not be contracts which, by virtue of other provisions of the Code, would bind her even at law, and upon which she might be sued under section 2131, we do not undertake to decide in this case. It is certain that there is no provision of the Code, which will admit of the construction, that the common-law doctrine of the wife’s incapacity to contract, so as to subject herself to suit' at law, is entirely abolished, or that she may be sued at law upon a note given for the purchase of land during her coverture. We decide, therefore, that Mrs. Marquis, who is, and was when she executed the note in suit, a feme covert, is not liable in this action. — See the case of Davis v. Foy, 7 Smedes & Marsh. 64, in which the Mississippi court express the same opiniondn reference to the Mississippi statute, which we have attained. The defect appears in the complaint; and such a defect, thus appearing, is available by demurrer. Under the previous adjudications of this court, the defense of the coverture of one defendant does not discharge the other ; and the plaintiff could, after judgment in favor of the feme covert on demurrer, proceed in the suit against her husband, who is her co-defendant. In this particular, this court has departed from the English practice. — Hall v. Cannte and Wife, 22 Ala. 650 ; 1 Chitty on Pleading, 44-45. The demurrer to the complaint should, therefore, have been taken by the feme covert defendant alone, and upon the demurrer she should have been discharged from the action; but the plaintiff should have been permitted to proceed against the other defendant. Both of the defendants’ special pleas are fatally defective, because they assume to answer the whole cause of action, while they answer only a part of it; and for that reason, the demurrers should have been sustained. For the error in overruling them, the judgment of the court below must be reversed. The first of the two special pleas interposes as a defense the plaintiff’s false representation that valuable lands, outside of the boundaries of the tract for which the note in suit was [673] given, were included in it. The second plea sets up as a defense his false representation that the land did not overflow. In the case of Holley v. Younge, 27 Ala. 203, section 2240 of the Code was construed to authorize a set-off, where the defendant was entitled to recover, at law, damages which the law was capable of measurihg accurately by a pecuniary standard. Pritchett v. Munroe, 16 Ala. 785, is an authority that an action could have been maintained at law for the misrepresentations alleged in the two special pleas, and the law prescribes the measure of damages in such cases. Upon the authority of those cases, we decide, that the matter of the two special pleas is available to the defendant by way of set-off. The measure of damages, in such case, would be the difference between the value of the tract of land as it actually was, and its value if it had been as represented. — Foster v. Rogers, 27 Ala. 602 ; Melton v. Rowland, 11 Ala. 732. The two special pleas probably are not framed in reference to the correct measure of damages, but the defects in that respect can be corrected by amendment in the court below. The judgment of the circuit court is reversed, the non-suit set aside, and the cause remanded.