Richardson v. Daggett

Phelps, J. A single question only is raised in this case. It is whether the note in question passed, upon the decease of E» Rowell, to his administrator, as being his sole property, or became, upon that event, the sole property of Mary Powell, by right of sur-vivorship. In the former case, the endorsement by Mary Powell must be regarded as ineffectual, she having no interest in the note to be transferred, and of course the plaintiff can have no right to recover on it as her endorsee ; but in the latter case, his right of recovering is not contested. In discussing this question, it is not necessary to advert to any considerations of fraud in regard to creditors, nor to enquire what — 342 — ’remedy might be successfully resorted to by the creditors of E. Powell, in case his estate should prove insolvent. The present defendant stands, not in the relation of creditor to that estate, but in that of á debtor, either to the plaintiff, or, if his position be correct, to the representative of the deceased payee. It is therefore not competent for him, to fortify his defence by any considerations, drawn from the policy of our laws in affording protection to creditors against fraudulent or collusive dispositions of property. The subject is mentioned, simply with a view of guarding against any inference from our decision, which might bear upon a question of that character. We have considered this case without reference to the rights of creditors, and simply as a question arising between the widow and the heir. .The subject of enquiry in this case, although new with us, has been much agitated elsewhere; but unfortunately, there is not in the law on this subject, that perfect symmetry, nor that coincidence of authority, which might be desired. The difficulty is probably inherent in the subject. Our law having originally vested in the husband upon marriage the personal property of the wife, and divested her during coverture of the power of contracting, it would seem that its symmetry required, that all the property of the wife, either held before marriage or acquired afterwards, should vest where the power of contracting and its consequent responsibility •are placed, in the husband. With respect to real estate, however, the law has always been otherwise, giving to the husband the ■usufruct during coverture, and, in some instances, a life estate after; but continuing the fee in the wife to the purposes of alienation, descent and devise. And when we advert to the superior importance attached to this species of property, and the comparatively low estimation in which personal estate was held, at the period when this law was established,' we perceive that the policy •of the law was originally altogether more favorable to the female sex than is generally imagined. Átthe same time, various devices have been countenanced by the law, especially in the courts of chancery, for the securing to a feme covert a separate property. Her dioses in action also are secured to her, subject however to a right in the husband to reduce them to possession during cover-ture. But even here, she must be joined in the action upon the ground that they survive to her if not reduced to possession during-coverture. In this state of things, the law not having adopted the rule of total exclusion of the wife from an interest in property, nor ■admitted her full capacity .to acquire and hold property, in any — 343 — manner during coverture, it becomes a matter of much difficulty ° . . " to draiv the line of distinction between her rights and those o! her husband, or to determine the preciso point where her interests cease to be regarded. It is probably owing to this circumstance, that so many subtle, not to say fanciful, 'distinctions have been made, and no little confusion shed upon the question,in what cases she should be joined in the action. Whether our law, or that which obtains in France on this subject, bo best adapted to promote the general prosperity and happiness, is not for us to determine. But should the system of imprisonment for debt be generally abandoned, the time may not bo far distant, when it will be a matter of serious consideration with legislatures, whether a full legal capacity in married women to acquire and hold property, might not mitigate the evils of many an unfortunate connexion. In discussing the question presented by this case, no importance can be attached to the suggestion, that a jeme covert is not to be regarded as having a separate existence. This position is utterly untenable. With respect to her real estate, she is regarded as the legal owner. She may convey by deed, or devise by will, and no conveyance of her husband will pass her estate without her concurrence ; nor at common law, can her right of dower be divested by any conveyance of his. Her ehoses in action remain vested in her while they remain such. She must join in the action if they are put in suit, and if the husband die pending the suit, she is entitled to them and not his executor. She may hold 'property as cestui que trust, and, as is admitted on all hands, she may in many instances join in a suit upon a contract made during coverture, and acquire an interest in the judgement which in case of the husband’s decease carries with it the whole interest, it is conceded, therefore, that she may acquire an interest in a contract made during coverture which interest the law will recognize and protect. The only remaining question, is whether this is such a case. If there be any case in which a feme covert can join in a suit on a contract made during coverture, it would seem to be that in which the contract is in writing,and she is named in it as a party. In accordance with this rule are all the authorities. She may join in an action on a bond to her and her husband. — See 1 Strange, 230; 4. T. Rep. 616; 1 Wilson, 224. So she may join in a suit for her personal labor, where there is an express promise to her. And the law is the samo in all cases where-there is an express promise to her, — See 1 ChitUfs Plead344 ins's, 19, and cases there cited. The rule is also laid down 0 by Rolle, Fitzherbert, Brown Jib., Cornyn. Chitty, Selwyn, Bacon, Hammond on parties, and Kent, in his Commentaries$ anc^ 's supported by abundant authority. And the rule applies to a promissory note. — See 2 Manic & Selwyn, 393. She may join also where she is the meritorious cause of the claim or right of action,— Chitty's Pl. 17, 18 and 19 ; 3 Lev. 403; 4 T.R. 616 ; 1 Ld. Ray. 398; Cro.Eliz. 61¡ , In this case Mary Powell might undoubtedly have joined with 'her husband in an action on the note in question, were he living, i She is not only named in the note, but was unquestionably the meritorious cause of the right of action. The case states that Ellick Powell was much embarrassed, and destitute of property ; that Mary Powell was possessed of a considerable estate, which estate was exchanged for real estate in Burlington, the title to which was vested in trustees, and that the note in question originated in a sale of that property. The circumstance, that EHic.k Powell executed the notes to Warner, is not important, as the property of the wife was doubtless relied upon as the means of payment. If she might have joined her husband in a suit on the note, is it not because she has a right vested in her, which is to be enforced by that suit, and which the law will recognize ? I am aware that the husband may sue alone, and appro-priale the property to himself; but this arises from the superior control which the law gives him over the interest of the wife. Ho may also appropriate her choses in action appertaining to her before marriage to his use ; but if he omit to do so, they survive to her. And this power is no more inconsistent with the right of survivorship in the one case, than in the other. The correct view of the subject seems to be this: that the wife has in such cases an interest in the contract which the law recognizes, and will enforce, subject however to be defeated by the husband, in the same manner that he may extinguish her interest in her choses,in other cases ; — that this interest remains until extinguished by him, and if he omits to do so, it survives to her. It is difficult to conceive upon what principle an action can be sustained in her name, even jointly with her husband, unless there is some preexisting right to support it. It has been contended, that this interest in the wife originates in the circumstance of her being joined in the action, and depends upon the election of the husband ; and that no right exists in her — 345 — until the action is brought. This is certainly inverted That a right is created by the mere attempt to enforce it, or that the mere incident to a right is its cause or source, is a metaphysi-' cal puzzle, in solving which we should find little aid in analogy. Were this the-correct principle however, it would seem to apply ¡in all cases where the husband chose to unite with his wife in bringing the action,; yet it .is only in those cases -where the wifeis 4he-meritorious cause, or when there is an express ¡promise to her, that she may be joined. The plain inference from this is, that she is joined in such cases, upon the intelligible and rational principle, that she has a right created by the contract, and in conformity to the general rule, that the action may be brought by those .in whom the right is vested. logic. ° * Again, it is laid down in the books, that the wife may join where the cause of action would servive, but not where it would not survive. Jf the right survives in consequence merely of her being joined in the action, the ruléis nonsensical. The rule, however, presupposes another criterion,-and that there is a class of cases in which the right would survive without a suit brought. If she cannot join unless the cause of action would survive, it follows, e con-verso,. that where she may join, the cause of action survives. There is no doubt that this is such a case, and, therefore., we infer that the cause of action in this instance survives. This view of the -subject preserves the analogy of the law.. It is a general rule, -that where the cause of action exists in two persons jointly, the cause of action,in case of the decease of one,survives, and is vested solely in the other. It is admitted, that the .husband may defeat the right of the wife in a case like the present; but this is an anomaly in the law, growing out of the peculiar relation existing between them ; and where this power is not ■exercised there appears no good reason why .the usual conse"quences of a joint interest or right should not follow. . Again, -it is settled that the wife is entitled, as-survivor,, to a debt due upon a judgement recovered by husband and wife, whether it be recovered for a debt due to her durn sola, or upon a contract made during coverture, It is difficult to perceive., how the recovery of a judgement by them jointly should have this effect, if an express contract would not carry the same consequence. That her right does not depend in such case open the mere cir•cumstance of obtaining a judgement, is apparent from another •rule which is well settled, that if she is properly joined in any .case, and the husband die pending the suit, the cause of action survives. — 346 — See 1 Chilly's Pl. p. 21 ; 2 Bla. Rep. 1239 ; Cro. Jac. 77, 205 ; Co. Lit. 351 ; 1 Vernon, 396 ; 4 T. R. 616 ; Com. Dig., Baron & Feme, F. 1. The same rule is laid down by Kent, 2 Kent's Com. 116; by . J J Hammond on parties p. 198; in 2 Vernon, 683, and 2 P. Wms. 496. The inference from ibis rule is irresistible, that the cause of action survives in all cases where the wife may be joined,, unless the right of the wife is considered as originating in the act of the husband in. commencing the suit. For such an idea, no pjrece,-dent is found in analogous cases; nor is there any instance of the kind known to our law, except in the single instance of a qui tarn., or popular action, which is a creature of statute, and governed by principles having- no applicability to the present case. Another strong argument in support of the position taken by us, is derived from the fact, that, in a court of chancery, a security like the one in question has ever, been considered as surviving to the wife. We know no good reason, why a different rule should obtain at law. - There are indeed cases,, where in consequence o.f the different mode of proceedings in the two courts, a different result would be produced.. But this can be justified,, only upon the ground that the mode of administering justice,peculiar, to each, is more thoroughly adapted tothegreat ends-oi administering jus.-tice in some cases than in others. Courts of law cannot,in all cases, adopt with propriety the rules of chancery, because the forms of proceeding, and the powers appertaining to the former, do not always admit of the same effectual and salutary application and enforcement of the rule which may be had in the latter. But where no adventitious difficulty of this nature occurs, but an abstract question of right,, unembarrassed by technicality or form, is presented, no good reason can be assigned for contradictory or conflicting decisions. This question, has undergone a discussion in two of the neighboring states. The case in 16 Mass. Rep. 480, was, in all important particulars, similar to this. Upon full discussion and deliberation, it was there held,, that a note and mortgage, executed to husband and wife during coverture, survives to her. A similar decision has b.een made in New-York; see 10 John. Rep. 51. Although these cases ar.e not to be regarded as strictly of authority in this state, yet they are entitled to great consideration, a3 ihe opinions of two eminently respectable tribunals. We are referred to two authorities, as sustaining the contrary — 347 — doctrine. The first is Reeve’s Domestic Relations, p. 62, the otlrer is the case of Griswold vs. Penniman, 2 Conn. Rep. 565. The opinion of Judge Reeie is of great weight. Rever-itVg him as Wé do, as one oi the fathers of the American bar, and as an early and able commentator upon our jurisprudence, his opinions have been received with that deference, which by common - consent is- accorded to superior intelligence and superior worth. Infallibility, however, is not the property of the human intellect ; and if there be any science, which, from its multifarious details, its refined distinctions, and the compass and variety of its application, is beyond the grasp of a single mind, it is probably the science of the law. Of the ablest jurist it may often be justly ■said, “ AUqnando dormitat Homerus-P Judge Reeve lays down the doctrine contended for "by the defendant, but he' admits that there are respectable authorities to -the contrary ; that the rule has ever been otherwise in chancery, and finally, that as this subject falls generally within the cogni-sance and control of that court, the rule which obtains there may be-considered as having prevailed. The case-of Griswold vs. Penniman bears no analogy to this-. That was a contarct respecting a distributory share of an intestate estate, which came to the wife by inheritance, and came within the common rule, that the personal property of the wife in possession Vests in the husband. It was not necessary, in that case, to decide the question now presented. The opinion of Judge Sivift, however, it must be admitted, covers that point now in controversy. He considers the circumstance^ that the husband may, in such -case, sue alone, as decisive. But is not the fact that she may join in the action, and that in that event the cause of action would survive, equally decisive P He considers also, that the rights of the wife are dependant upon the election of the husband ; and that the bringing the action in their joint names determines that election, and vests the right in her. The idea that her right originates in this circumstance, has already been considered. At the same lime, it must be admitted, that her rights do in a sense depend upon his election, inasmuch as he may exclude the wife from all participation in the right of action. The question, however, is as to the consequence of his failing so to determine. We consider, in analogy to the law in regard to her cboses in action, existing before marriage, that, where the law does recognize such an interest in her as warrants her being made co-plaintiff, that interest, unless -extinguished by the husband, does survive. But admitting that — 348 — the right of survivorship does, in such case, depeud upon the husband’s election,-is there no other mode of determining that election,, than simply by bringing a suit f We think there is; and that the intent of the husband may be inferred, under circumstances, from the act of taking the security in a joint form. Adopting then the principle of Judge Swift, is there not enough in this case, to warrant the conclusion, that our decision is in perfect consonance with the intention of the husband ? Ellick Powell,, as is stated in the case, was in embarrassed circumstances and destitute of property. The wife was possessed before the marriage of considerable estate. By an agreement, made between them'before marriage, this estate was to be subject to her separate and sole control. This agreement, it is argued, became, by the subsequent union between the parties, extinguished. Be ft so ; yet there is no difficulty in considering it, as furnishing evidence of his intention, however inoperative it might be as a contract. The property was kept subject to the wife’s control — the title to il, upon its re-investment, was vested in trustees — and there it remained, until, by means of a sale, with the concurrence of all parties, it became at last invested in the security in question. Can there be a doubt, under these circumstances, of the intention of E. Powell ? Does not his conduct in relation to this property, from the time of his marriage, to that of his decease, indicate throughout a settled purpose to adhere to the agreement, which,whether it could be legally enforced or not, was certainly binding in conscience and common morality i Shall forced presumptions be made, or the memory of the dead reproached by the supposition, in despite of this evidence, that he entertained the purposeof violating his faith, and leaving her who had confided in it, in case she survived him, bereft of her subsistence ? It is only necessary to add, that there is no doubt, that a - court of chancery would treat this note as the separate property of the wife. No reason is furnished us, nor do we believe can be, why we should deny her, on this occasion, that protection in her rights, which, in another capacity, we should be forced to award to her. The judgement of ¡be county court is, therefore, affirmed.