Brown v. Fifield

[326] By the Court, Green, J. The ownership of property does not necessarily include the power to sell or convey it. Married women, at the common law, were capable of holding real estate; and infants, lunatics, and idiots might be the owners of property of any description, but are incapable in law of making any obligatory contract for the sale of it. The general rule of the common law is, that a married woman cannot, during her coverture, make an obligatory contract. (Story on Gowbracts, § 83.) To this rule there are several exceptions, none oí which, however, affect this case. Has the Constitution removed the disability to contract, which resulted from the coverture by the common law ? It certainly has not done so in .express terms, nor do we discover anything in its language which seems to imply such an intention. She is expressly empowered to devise and bequeath the property as if she were unmarried, and it may fairly be inferred, that if it had been intended to enable her to sell and dispose of it by contract during the coverture, such intent would have been manifested in express terms. It is a familiar rule, that a statute in contravention of the common law, ought not to be extended by construction, and the rule is equally applicable to a Constitutional provision of this character. The Circuit Judge was wrong, therefore, in charging the jury that the plaintiff’s wife, being the owner of the horse, had the right to sell, and could convey a good title to the defendant. The second branch of the charge to the jury was right. The wife having no authority to sell the property, the contract was void, but the plaintiff could not sue alone, and should have joined his wife in the action. Mr. Chitty, in his Treatise on Pleading, says, that “ for injuries to the person, or to the real or personal property of the wife, committed before marriage, when the cause of action would survive to [327] the wife, she must join in the action, and if she die before judgment, it will abate.” (1 GMt. PI., p. 73.) In this case the cause of action would survive to the wife, and upon her death during the life of the plaintiff, the property would go to her representatives, and he would have no interest in it. It does not seem necessary in this case to determine how far the husband’s right extends to control the possession of the property of his wife, nor whether, with the consent of the husband, the wife could sell or otherwise legally dispose of the personal property. It is a general rule, that the ownership of property gives the right of possession as an incident; but if ■this rule applies to the property in question, yet hy the common law the husband ought to join with the wife for the sake of conformity, even when she sues as executrix (1 GMt. PI., 74), or upon a contract made hy her as a feme covert trader, under the custom of London. (Story on Gont., § 88.) But it is claimed on behalf of the plaintiff) that the defendant should have pleaded the non-joinder of the wife in abatement, and having failed to do so, that it is too late to take advantage of it. The true doctrine upon this point is stated by Chitty, in the following lanugage : “ If the husband sue alone when the wife ought to be joined, either in her own right or in autre droit, he will be non-suited; for, though in general the non-joinder of the party as a co-plaintiff in an action for a tort can only be pleaded in abatement, yet that rule only applies in those cases in which the party suing had some legal interest in his own right in the property affected. A husband has, independently of Ms wife, no legal interest or cause of action whatever for injuries to her, or her property, in those instances in which it is necessary to join her as a plaintiff in an action.” (1 Chitty Pl., 75.) Whether the Court erred or not in charging the jury, that the defendant was entitled to a verdict for the value of the property, we think is not material. It may be regarded as [328] merely a direction to them to ascertain and assess its value, and as such was not improper. Had the Court been required to direct the jury to find according to the fact, if they were satisfied from the proof that the defendant was not the general owner, and had no interest in the property, and such direction had been refused, the question would then have arisen, whether this was a case within the provisions of Section 29, of Chapter 124, entitled, “ Of the action of Replevin.” No such direction having been asked, we are of the opinion that the plaintiff has no right to complain of this portion of the charge as given. It must be certified to the Circuit Court for the County of Jackson, as the opinion of this Court, that there is eiTor in that pox’tion of the charge given to the jury, wherein it was stated that the wife of the plaintiff had the right to sell the horse in qxxestion, and could convey a good title thereto to the defendant, and that there is no ex-ror in the other portions of said charge. All the Judges were present and all concurred^- except Douglass, J., who declined expressing any opinion as to whether, under the Constitution, a married woman could sell her separate property without her husband’s coxxsent, as he deemed a decision of that point unnecessary for the determination of this case ; but concurred with the rest of the Court upon the other points decided.