Deusch v. Questa

Opinion of the coufcr by JUDGE HOBSON Affirming. ■Christina Deusch, in the year 1890, executed a mortgage to Georgia D. Bright on certain land in Covington to secure a debt of $4,500, her husband not joining in the mortgage. On July 15, 1895, Bright filed suit against her, and on November 20, 1898, recovered a personal judgment for the debt; also an order for the sale of the property to pav the debt. The sale was made under the judgment. The land was purchased by the plaintiff, the sale was confirmed, and the land was conveyed to her. Thereafter .she sold and conveyed the property to appellee Adelaide Questa, who has since held it. Mrs. Deusch’s husband was noit a party to the suit. Some time after this she died, and also her-husband. This action was begun on February 4, 1901, by her heirs at law, to recover the property from Mrs. Questa on the ground that the mortgage, judgment, sale, and all proceedings thereunder were void. [477] As the husband of Mrs. Deusch did not join in the mortgage, it was void, and, if no judgment had been rendered upon it, it could not be enforced. The question to be determined is whether the same rule applies to the judgment rendered against her since the act of March 15, 1894, which is now embraced in sections 2127-2148, Kentucky Statutes, 1899, because the husband was not a party to the proceedings. By this act it is provided: “A married woman may take, acquire and hold property, real and personal, by gift, devise or descent, or by purchase, and she may, in her own name as if she were unmarried, sell and dispose of her personal property. She may make contracts and sue and be sued as a single woman ,except that she may not make any executory contract to sell or convey or mortgage her real estate, unless her husband join in such contract.” Section 2128. “Husband and wife may sell and convey her land and chattels real, but the conveyance must be acknowledged and recorded in the manner required in the chapter on conveyances.” Section 2129. Since this statute was passed it has been held by this court that a married woman, having power to sue and be sued as though she were single, is bound by judgments against her as other litigants. Turner v. Gill, 105 Ky., 414, 20 R., 1253, 49 S. W., 311; Wren v. Ficklen, 109 Ky.,. 472, 22 R., 1035, 59 S. W., 746; Howard v. Gibson, 22 R., 1294, 60 S. W., 491; Shanklin v. Moody, 23 R., 2063, 66 S. W., 502. It is insisted, however, for appellants, that by the statute the wife can not sell or convey or mortgage her land unless her husband joins with her, and that to permit her to be bound by a judgment in a case to which he is not a party is to allow her to accomplish by indirection what she can not do directly; and in support ■of this we are referred to a number, of authorities to the uffect that a married woman can not do by estoppel what [478] she can not do by direct contract. There is some conflict' in the authorities as to how far a married woman may be estopped by her conduct (15 Am. & Eng. Eney. of Law, 799,. 800), but we do not think it necessáry here to consider this question. In 24 Am. & Eng. Ency. of Law, 746, it is said:. “As a general rule, at' common law a married woman can neither sue nor be sued alone, but she must sue or be sued in connection with her husband, and therefore, to render a judgment conclusive upon her, it is necessary that her husband should have been joined in the suit. By statute,, however, in most jurisdictions, the common-law rule has been much modified, and in some jurisdictions the disability of married women in this respect has been removed. Where her disability has thus been removed, she will be concluded by a judgment in a suit in which she sued or was sued without the joinder of her husband.” It is the purpose of our statute to enlarge the rights of married wotaen, and among the rights conferred upon her is' the right to sue and be sued as a single woman. The right to.sue and be sued as a single woman necessarily carries with it the-right to sue or be sued alone, and without the joinder of her husband. The exception in the act that she may not make any executory contract to sell or convey or mortgage-her real estate is not a limitation upon.her right to sue- and be sued as a single woman, but upon her power to contract. By section 2132, Kentucky Statutes, 1899, after the death of either husband or wife the survivor shall have an estate for life in one-third of the real estate of which the-deceased spouse was seized in fee during coverture, unless the right thereto has been barred or relinquished. Where the husband is not a party to the suit, his rights under this section are not affected by the judgment; but, as she-has the power to sue and be sued as a single wotman, she is [479] bound as other litigants by a judgment against her. And appellants, who are the children of the wife, take only such rights as she had, as they claim under her. To hold otherwise would be to deny the statute its natural effect, and to-maker it mean that she may sue and be sued as a single woman only in a certain class of actions, fflhis is not the meaning of the Legislature. It has conferred upon married women the right in all actions to sue and be sued as single women. The purpose is to relieve them from the disability of coverture in so far as they could not sue or be •sued alone. In conferring upon married women the power to employ counsel and control their own lawsuits, the Legislature had in mind relieving them from- the power of their husbands in this particular, and, this being the case, the estoppel of the judgment operates upon them in all eases as though they were unmarried. Judgment affirmed.