Schmidt v. Postel

Mr. Justice Beeese delivered the opinion of the Court: This is a plain case; the main question arising in it is settled by Carpenter et al. v. Mitchell, 50 Ill. 470, where it was held that the note of a married woman, executed with her husband in payment for land purchased by the wife and conveyed to her, could not be the foundation of an action at law against her. If allowed, it would frustrate the object of the act of 1861 to protect married women in their separate property; for under the influence of her husband, which a married woman usually is, her separate property could be swept from her by his foolish undertakings and reckless contracts. The other point made is, that a married woman, sued with her husband, can not plead separately; she must join her husband. Still keeping in view the object of the act of 1861 to protect married women in their separate property, how easy would it be for a dishonest husband, who had procured his wife’s signature to a note, to'subject her property to its payment, he himself refusing to interpose any plea. If he abandons the defense or is dismissed out of the case, how could she protect her property rights unless permitted to plead ? It is a necessity she should have that right. The views presented in the case of Emerson v. Clayton, 32 Ill. 493, are applicable here. The'demurrer to the plea, for the reasons alleged in support of it, should not have been allowed. The demurrer should have been overruled, and for refusing to overrule it the court erred, and for the error the judgment must be reversed and the cause remanded. Judgment.reversed.