Wicks v. Mitchell

The opinion of the court was delivered by Brewer, J.: These three cases present the same question and may be considered together. The defendants in error brought their several actions upon promissory notes signed by plaintiff in error, and by E. B. Wicks and F. S. Boice, Plaintiff in error answered, alleging her coverture, that said notes Avere given in satisfaction of certain accounts due by the firm of Wicks & Boice, that no consideration therefor passed to her, that they Avere not given for her OAvn benefit or for the benefit of her separate estate,.nor Avith reference thereto, and that she “did not nor has she charged her sole or separate propei’ty with the payment of said notes, or either of them, but at the time of their execution refused to in any manner so charge her sole and separate property or any part thereof.” Demurrers to these answers were sustained, and judgments rendered. The only thing to distinguish these cases from the case of Deering v. Boyle, 8 Kas., 525, is contained in the last clause of the answers just quoted. It Avas in that case held that “when a married woman executes a promissory note in payment and satisfaction of her husband’s debt an action may be maintained against her on said note, and her separate property applied in payment of the same.” Counsel for plaintiff in error claim, "arguing from that decision, that her separate estate is so charged because it is presumed from the giving of the note that she intended to charge such estate; or, in other words, that the note is simply evidence of her intention. They further claim that such a note is only prima facie evidence, and may be overthroAvn by other testimony; that therefore in every such case a question of fact exists as to her intention; that here she alleges that it Avas not her intention [88] to charge her separate estate, and that hence, the demurrers, admitting that fact, should have been overruled. The clause in the answers quoted contains two allegations: 1st, That she did not charge her separate property. This .is an allegation of a legal conclusion. She admits the execution of the notes. Now whether thereby she charged her separate property is a question of law; for there is no claim in the petitions that she ever executed any mortgage or other instrument specifically appropriating certain property to the payment of these notes. The only question raised by the petitions is whether she has executed such an instrument, as, not being paid, can be collected out of her separate property. The second allegation is, that she refused at the time of the execution of these notes to charge her separate property. This is an allegation of fact. This may properly be considered as simply an allegation that she refused by mortgage or otherwise to make any specific appropriation of any of her separate property to the payment of these notes. In other words, she did nothing further than executing these notes towards charging her separate property. In this view the question raised by the learned counsel for plaintiff in error is not in the cases, and they fall within .the letter as well as the spirit and reasoning of the rule laid down in Deering v. Boyle. But suppose this be not a fair interpretation of this clause in the answers, and that the question as presented by counsel, is fairly in the record: were the demurrers improperly overruled.? Will a married woman be permitted to plead a refusal to charge her separate estate in avoidance of the obligation created by her promissory note? Will she be permitted to admit tlfe execution of a written instrument, and to assert, in discharge of it, that at' the time she executed it, she said she would not do what she was doing? Will she be allowed to deny the legal effect of her own promises? The notes created no personal obligation against her. This seems to be undisputed. They were promises to- pay, which could be enforced out of her separate estate, or else they were nullities. They were valid and could be enforced out of her separate property unless [89] made nullities by her assertion that they -should not be paid therefrom. When a party under no disability has executed a deed, mortgage, bond or note, would an admission of their execution be affected in the slightest degree by an allegation that at the time of execution the party declared he would not convey, -or pay? A party is held obligated to do that which is the legal effect of the instrument he executes. The rule is as fixed and clear for married women as for any other persons. When they sign promises to pay, the law holds that they act in good faith, and that they intend to do what they have promised. It considers that instrument a valid instrument, and as it can be held valid only because enforceable against her separate estate it enforces it against such estate. It will not permit her, even if she desire it, to plead her own dishonest purpose in avoidance of the instrument she has signed and delivered. Counsel in strong language picture the hardship which may ensue where an unsuspecting wife, lured by the entreaties of her husband, or frightened at the arrest and possible disgrace which threaten him, signs as surety notes for his indebtedness, and shortly thereafter finds all her separate property swept away from herself and children. If this be the-result, the statutes of these later times, which are entitled “statutes to protect the rights of married women,” counsel claim, were more appropriately denominated “statutes to lure married women into the m'eshes of their'husbands’ creditors.” The possibility of results like this, in isolated cases, could not of course determine the rule. Considerations of that kind may appropriately be pressed in the legislature, but can have no weight with us who are to determine what is, not what should be the law. It may not be inappropriate to say, however, that with every enlargement of the rights of married women comes a corresponding increase in their responsibilities. When they take the right to control their sepai’ate estates, they assume the risks of such control. When the law gives them the privileges of separate individual citizens, they take with it all the responsibilities and dangers of such [90] citizens. Given the right to contract, they assume the liabilities of contractors. At first, it is true, hardships may in isolated instances ensue from the inexperience of women in matters of business. Such hardships always arise upon any change in the rules of property or business. While we may regret such hardships, we may rejoice in the change, believing the new rule the better rule, and that society, readjusted upon the basis of the absolute independence of all adult citizens in matters of property, will more successfully work out the greatest good for all. But whether the change be for the better or worse cannot affect our determination. We have no power of legislation or’ change. The judgments will be affirmed. • All the Justices concurring.