Porter v. Haley & Stone

Simrall, C. J., delivered the opinion of the court. : Haley & Stone rendered the services as solicitors, in the defense of a suit in chancery, brought against Mrs. Porter and her husband, involving her right to real estate claimed by her as separate property. [69] So that the question, in the abstract, is whether a married woman (who owns separate estate, as is agreed) can contract to pay a solicitor compensation for the defense of a suit brought to affect her rights to separate real estate. There can be no doubt that if property is settled to her-separate use, so as to constitute her the beneficial owner of an equitable estate, she could charge that estate with such liability, enforceable against it in a court of equity. But it is argued that the property attempted to be subjected in this suit was a statutory, legal estate, and that the power of Mrs. Porter over it, and her capacity to bind it, was governed altogether by the statute — that we must look alone to it for her authority to make the contract. The premise is undoubtedly correct. The statute, section 1778 of the Code of 1871, continues to a woman, after marriage, every species and description of property owned at the time of the marriage, as her separate estate. So, also, acquisitions after marriage, including the fruits of her personal service. And money recovered for damages to her person shall constitute personal estate. By section 1779, the rents, issues, and income' of the separate estate shall accrue and inure to the wife, and shall not be taken for the husband’s debts. Section'1780 allows-the wife to rent her land, make contracts for the use thereof, loan her money, take securities therefor in her own name, and employ it in trade or business. It would be vain and nugatory to confer these large property interests and rights on married women, and deny them free access to the courts for their assertion and defense. If a wife may take to herself damages recovered for a personal injury, the law does not intend that her property may be despoiled, and no compensation enforced against the wrongdoer. If she is disseized of her lands, may she not employ the usual and necessary aids allowed other land-owners to regain possession, and recover damages- equivalent to the-rents and profits of which she has been deprived ? [70] It is admitted that express authority is not given by statute to employ counsel and engage to pay fees, but she may sue, .■alone or jointly with her husband, “ for the recovery of her property or rights ; ” and she may be sued “ on all contracts, ■or other matters, for which her individual property is liable.” Code 1871, sec. 1783. She may ■ execute a bond necessary in any proceeding, ■either at law or in equity, to establish or enforce her lights, .and the same shall be binding, etc. Code 1871, sec. 1781. She may contract for work and labor for the use and benefit ■or improvement of her separate estate. Code 1871, sec. .1780. This legislation implies that the courts shall be open to the “wife to sue both for the recovery of her property or “ rights.” 'The principal power carries with it all incidents necessary to its efficiency. So, she may be sued on her contracts, and other matters; the power to defend a suit is necessarily implied. It would be folly to say that she could not consult and employ counsel, if that were usual, proper, and necessary. Since she may be impleaded in the courts in matters affecting her separate estate, she must be esteemed competent to avail of all the aids and facilities open to suitors generally. ■If she may loan her money and take securities therefor, without further provision of law, she could sue on the note or bond, or foreclose the mortgage, and could engage an attorney, and contract to pay for that service. By express statute, she may make any bond incident to judicial proceedings. It was held in New York, in Freeking v. Bolland, 53 N. Y. 422-425, that under a statute allowing a married woman to carry on any trade or business, etc., the power to make contracts relating to her business was incidental to her power of conducting it. Adams v. Honness, 12 Barb. 326 ; Chapman v. Foster, 6 Allen, 136. We have been referred, by counsel for the appellant, to several cases supposed to sustain his view. Putnam v. Tennyson, 50 Ind. 459, illustrates the class. There, the effort was [71] to hold the wife bound for attorney’s fees to prosecute a suit for divorce. Such a contract fell under the common-law rule, mid was not affected by the statute. It had no relation to the separate estate or property interests of the wife. Judgment affirmed.