Freret v. Taylor

[309] Statement of the Case. NIOHOLLS, J. On the 14th of September, 1905, the plaintiff leased to Mrs. Alice A. Taylor, the defendant herein, the two residences, known as “1519 and 1525 Joseph Street,” in the city of New Orleans, for the term of three years, commencing on the 1st ■of October, 1905, and ending on the 30th of •October, 1908, for and in consideration of .a monthly rental of $150, payable monthly. In the act of lease it was declared that the lessee had executed and delivered to plaintiff notes in representation of the different installments of rent; but in point of fact .such notes were not delivered nor executed. •One of the stipulations of this lease was that, •on failure of the lessee to pay the rent punctually at maturity,.the rent for the whole un-expired term of the lease should, without putting the lessee in default, become at once •due and exigible, and in case it became necessary to put the claim in the hands of .an attorney for collection, the lessee should pay, as counsel fees, an additional sum of 10 per cent, on the sum so due and exigible, and, should the lessee in any manner violate any of the conditions of the lease, the lessor reserved to him the right of immediately ■canceling the lease without putting the lessee In default; the lessee expressly waiving the legal notice to vacate the premises. The lessee agreed to make no sublease, in whole ■or part, without the consent of the lessor. On the 28th of March, 1906, the plaintiff instituted the present suit against defend.-ant, asking judgment against her for the- sum •of $4,750, with interest from judicial demand, .and recognition of his lessor’s privilege upon all the property and furniture in the leased .premises. In his petition plaintiff alleged that defendant had defaulted in paying part -of one of the rent installments, and under the stipulation stated the rent for the whole unexpired term of the lease had become due .and exigible. A writ of provisional seizure was ordered to issue, and did issue, as prayed for, under which the sheriff seized the property and furniture in the leased premises. On the 28th of March the defendant, under authority of the court so to do, filed a motion to dissolve the writ of provisional seizure on the grounds (1) that the lease declared on was illegal and of no effect, for the reason that she was a married woman, and was so at the time of the signing of the lease, and she was not authorized by her husband to contract for or sign the lease; (2) that she was sued as a widow on s.aid lease, when in truth and in fact she was a married woman, not separated from bed and board, nor divorced from her husband, and she could not stand in judgment in the suit, as the debt sued on was a community debt. A sister of the defendant, a Mrs. Watkins, making affidavit that the furniture seized belonged to her, the sheriff compelled the plaintiff to furnish an indemnity bond. The husband of Mrs. Watkins intervened, claiming ownership of the furniture, and asked for an injunction against the sale. The court heard evidence on the intervention and the rule to dissolve, and dismissed both. The defendant, then, with and under the authority of the court, filed an answer. • In this answer she denied that she was a widow, as claimed to be in the petition, and averred that she was a married woman, and was such at the date of the signing of the lease, and that she had always been known as a married woman; that she had never been judicially separated from her husband, who was then living in the city of St. Louis, Mo., and that, in no event, could she be held liable for the debts of her husband, as was being attempted, the debt sued on being a debt of the community existing between herself and her husband, for which he alone was liable; that, even in the event she could be held liable for the debt, she had not been [311] properly brought into court, as plaintiff’s petition did not show that she was joined with her husband to aid and assist her, or in the absence of her husband, by the court, as the practice and the procedure of the Code of Practice provided in such cases. She denied that she was indebted unto the plaintiff whatever, under the lease as sued on. Assuming the position of plaintiff in reconvention, she prayed for a judgment for $500 lor counsel fees, that her right to demand further damages be reserved, and that the writ of provisional seizure be set aside. The district court rendered judgment in favor of the plaintiff against the defendant for $1,150, with interest thereon, for $115 attorney’s fees, with recognition and maintenance of plaintiff’s landlord’s lien and privilege on the property leased. Defendant has obtained and perfected a devolutive appeal from the judgment. On the trial of the case an issue was raised as to whether or not the course of the plaintiff was due, as he claimed it was, to representations made by the defendant, pri- or to and at the time of the signing of the lease, that she was a widow, by reason of which fact she was estopped from asserting or claiming that she was not such. A good deal' of testimony was taken on that point, which was evidently decided by the trial judge adversely to the defendant. The evidence established as a fact that she was a married woman prior to and at the time of the signing of the lease; that her husband was then, and is still, living at St. Louis; that he gave her no authority to make the lease or to stand in judgment in the present suit; that, though she and her husband were living apart, they had never been judicially separated or divorced; that her legal domicile was in the state of Missouri; that her husband had never lived in Louisiana, nor consented to his wife’s coming to live in Louisiana; that there is ■ presently I pending in Missouri a suit brought against her by her husband for a divorce for desertion and ill treatment. On the trial plaintiff offered in evidence-section 4335 of the Revised Statutes of Missouri of 1899 [Ann. St. 1906, p. 2378], which» is as follows: “Sec. 4335. Wife_ deemed femme sole for what purposes. — A married woman shall be decreed a femme sole so far as to enable her to carry on and transact business on her own account, to-contract and be contracted with, to sue and be-sued, and to enforce and have enforced against her property such judgments as may be rendered against her, and may sue or be sued at law, or in equity, with or without her husband being joined as a party: provided a married woman may invoke all .exemption and homestead laws now in force for the protection of personal and real property owned by the head' of a family except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property.’" Rev. St. 1889, § 6864. Opinion. It will be noticed that in none of the-pleadings filed by her does she assert or pretend that the property provisionally seized belongs to herself. It will be also noticed that the trial judge authorized her to file an answer in this case and that she has acted under such authority. The defendant is temporarily within the state, without the consent or authority of her husband, and there is nothing before us tending to show that she acquired any property here. There is certainly none involved in the present litigation. The issue as to the ownership of the property seized is one entirely between the plaintiff and Watkins and his wife. Defendant has only been brought into court (as disclosed by the evidence) touching her personal liability for a debt contracted by herself. Having the right under the law of her domicile to enter into-contracts as if a feme sole, her capacity to do so accompanies her wherever she may go, and her liability on such contracts is not extinguished by the. fact that she may have exercised her legal right as this defendant [313] did into another state.) Laws enacted by certain states for the protection of married women, by requiring the authorization •of their husbands to their contracts, are personal statutes, and if, in the state where the parties have their domicile, such protective laws are not deemed necessary, but really añore narrow and restrictive than they should be, it is not the duty of the states in which those parties may chance to temporarily sojourn to safeguard their rights or restrict their actions in a manner or to an extent •other and different from what is provided for in the state of their domicile. We think these remarks apply equally to protective statutes requiring women to be authorized by their husbands to stand in .judgment in suits or to have their husbands joined with them in such suits. In the case -at bar defendant herself sought and obtain■ed the authority of the trial judge to file her .answer. When she availed herself of the ^authorization and went into court, as she undoubtedly had the right to do, she joined issue with the plaintiff upon his demand, .and from that time forward, if not before, ■she had full power to present all of her defenses. The authority to file the answer carried with it, as a legal consequence, the right to make good, if she could, all the alle•gations of that answer. We find no error in the judgment appealed .from, and it is hereby affirmed.