Clawson v. Hutchinson

The opinion of the court was delivered by "Willard, C. J. The question is whether the provisions of the constitution and the statutes passed under it, declaring the rights of married women as to their separate property, destroys the husband’s liability for the wife’s debts dum sola, where the marriage took place and the action was brought prior to the adoption of the constitution. The note in suit was given by the wife of the defendant dum sola in 1862, and this action was commenced in 1867. The constitution declares .“that the real and personal property of a woman held at the time of her marriage, or which she may thereafter acquire, either by gift, grant, inheritance, devise or otherwise, shall not be subject to levy and sale for her husband’s debts, but shall be held as her separate property, and may be bequeathed, devised or alienated by her the same as if she were unmarried; prodded, that no gift or grant from the husband to the wife shall be detrimental to the claims [326] of liis creditors.” Article XIV., Section 8. Under this provision, standing by itself, the husband would still remain subject to his common law liability for the debts of his wife prior to marriage, which would be manifestly unjust after taking from him that interest in his wife’s property that was the ground of such common law liability. Accordingly the act of 1870, (14 Stat. 325,) after having re-enacted the enabling features of this constitutional provision and declared in still more full terms the capacity of a married woman to deal with her separate property, adds the following proviso: “Provided, that the husband shall not be liable for the debts of the wife contracted prior to or after their marriage, except for her necessary support.” The provisions of the act of 1870 were re-enacted in the General Statutes, page 482. It is claimed that these provisions acted retrospectively, so as to divest rights of action already acquired under marriages celebrated before the adoption of the constitution. No intention is expressed, as there are no words signifying an intention to impair rights already accrued; if it exists, it must be made out inferentially on principles of construction. Such an enlargement of the expressed sense must not be allowed unless imperatively demanded by the manifest intent of the act, as when it would fail of full efficacy upon any other construction, in which case it would stand on the high ground of a necessary implication. In the present case the equity of the statute is the key of its intent, because the plain object in view was to equalize the rights and liabilities of the husband, which equality had been disturbed by the constitutional provision. This would exclude the idea of depriving the creditor of his acquired right of action where, at the same time such right of action accrued, the husband possessed full and undiminished marital rights as in the case in hand. In Witsell v. Charleston, 7 S, C. 88, the question was whether the wife’s equitable interests passed into her legal separate estate, created as such by the constitution, under the words “real and personal property,” and the present question ivas not touched. The appeal must be dismissed. Appeal dismissed. McIver and Haskell, A. J.’s, concurred..