Travis v. Willis

Simrall, C. J., delivered the opinion of the court. The married woman’s law is enabling, partially emancipating the wife from the disabilities of coverture. The statute confers legal rights, and in general terms defines her dominion over her property and her capacity to subject it to her contracts. She may sue and be sued, jointly with her husband or separately, on all contracts or other matters for which her individual property is liable. Code, sec. 1783. After defining the capacity of a married woman to contract during coverture, and thereby make liable her property owned at the time of the marriage and subsequently acquired, the statute, in brief but comprehensive Words, deals with her ante-nuptial contracts in section 1480, to wit: “ And her separate property shall be liable for debts contracted by her before marriage.” > ‘ ‘ The husband shall not be liable for debts contracted by the ivife before marriage ; nor shall he be liable for debts contracted by her after marriage, if she hold separate property, under this chapter.” In Cannon v. Gratham, 45 Miss. 92, the precise point adjudged ivas that there was.no liability under the statute on the husband for debts contracted by the wife before marriage. The counsel for the creditor ear [563] nestly urged the argument that the husband was left by the ¡statute under the common-law liability, “ zohere the wife had no separate property.” It appears from the report of the case that the husband was sued alone, and it was ruled that she was (if the husband’s responsibility was as at common law) the meritorious debtor, and must be sued jointly with the husband. Whether the action be ex contractu or ex delicto, both must be joined, and if the judgment were against the husband alone, it would be error and ground of reversal. Cole v. Seely, 25 Vt. 220; Gage v. Reed, 15 Johns. 403. It is not technically a case of joint liability, but a limited obligation which the common law imposed on the husband as incident to the marriage; hence, if the husband dies before judgment, the suit would survive against the widow, but the liability of the husband would be absolutely extinguished; nor would his estate in the hands of a personal representative be affected. Cureton v. Moore, 2 Jones Eq. 204. But if the wife dies, the suit abates, because there is no longer in esse the real debtor. 1 Chitty’s PI. 59. Although the wife may have brought to the husband a fortune, if he has reduced it to possession and then dies, it furnishes no reason to pursue his estate for an ante-nuptial debt. But if he becomes the Avife’s administrator, and as such reduces to possession assets that Avere hers, to that extent the claim is good against him as her representative. Jones v. Walkey, 5 Sneed, 135; Heard v. Standford, 3 Wms. 409; Waul v. Kirkman, 13 Smed. & M. 599. If, during coverture, the husband makes an express promise on a fresh consideration to pay' the Avife’s ante-nuptial debt, recovery may be had after the Avife’s death. Waul v. Kirkman, supra; Beach v. Lee, 2 Dall. 257. The common law laid upon the husband this liability for the wife’s ante-nuptial debts, not because he got property by the marriage, for Avhether she brought him property or not, it arose. It probably sprang out of the intimate relation Avhich marriage created, making husband and wife one person, and not alloAAdng her to be sued alone. 2 Bishop’s Mar. Worn., sec. 312. [564] The statute abolished altogether this limited responsibility of the husband. But it left the wife liable as at common law. If it had been altogether silent on the subject, that would have been the result. The clause declaring “that her separate property shall be liable for debts contracted by her before marriage,” announces what would have been true without-such declaration. The clause was properly inserted to prevent the conclusion that property held under the statute should be-liable to these debts, as well as those which she is enabled under the statute to incur. It does not convey the idea pressed by counsel: that if she has no property in her own right, the marriage, ipso facto, absolved her from ante-nuptial debts. Mrs. Travis continued liable after her second marriage to' the same extent she was when she contracted the debt during-her widowhood. She ivas subject to suit, judgment, and final process. The cause of action preferred against her appearing-by the pleading to have been contracted “ dum sola,” her coverture at the time of suit and judgment interposed nohinderance or obstruction to a recovery. Th'e real point of disputation is the alleged incapacity of a married woman to confess a judgment. The record must furnish evidence of the legal liability of a married woman. Her coverture, prima facie, makes void her contracts ; therefore, it must appear that, in the particular-case, liability is disclosed. If the declaration shows that the notes were executed by Mrs. Lewis during her Avidowhood, a judgment against her for want of a plea, or by withdraAval of a plea, would be good. That would be the sentence of the Law, on the state of the record. If, instead of silence, she appears in open court and admits the facts to be true, and consents that judgment may be entered against her, the judgment is by virtue of the consent and confession. If the case presented as a cause of action in laAV imposes no liability because of coverture, the confession of judgment Avould not be binding on her. That Avould follow by virtue of section 1783 of [565] •the Code, which forbids a judgment against her, “unless the liability of her separate property be first established;” and, ;also, from the principles announced in Griffin v. Bagan & Dickey, 52 Miss. 80, 81. At the common law, when the effect of the wife’s admission was to impose a liability on the husband, she could not bin,d him. But when the statute has exonerated the husband from responsibility on the wife’s ante-nuptial contracts, no solid reason is perceived why she may not allow judgment by nil ■dicit, or confession, especially with the consent and concurrence of the husband. . Not that she can confess judgment for ;a debt which is not in law valid, and give the judgment force ■and conclusiveness by virtue of the confession, but because, if the cause of action to which the confession applies imports a legal obligation, the confession is but a consent that the judgment may be pronounced on the cause of action. We have been referred to several cases holding that the wife ‘Cannot give a warrant of attorney to confess judgment, and that she cannot make admissions competent as evidence in a .joint suit against her husband and herself. Such is the rule where the admissions or confessions would affect the husband’s interests. Brown and Wife v. Lasalle, 6 Ind. 147, and cases there cited. The rule at common law is as broad as contended for by counsel. But the rule has its foundation in the principles of that system respecting the relations of husband and wife, and the effect of marriage on the rights of the husband in the wife’s property. The statute here relieves the husband from the obligation to pay ante-nuptial debts. He stands in relation to them as a ■strang-er. Her confession or admission in nowise affects his rights. Recovery may be had against her, and it matters not whether it be by verdict and judgment, or by default or confession. Her admissions in pais are competent evidence -■against her, because in no event can judgment be had against ■•the husband. Wo lately held that the wife was liable in assumpsit for [566] counsel fees incurred in defending a suit which affected her real estate held under the statute. We were referred to cases denying her liability, for such fees in divorce suits. The distinction was pointed out that in the former case she could sue- or be sued as respects her separate estate, and by implication from the statute she must have the capacity, of any other-suitor to make her suit or defense available, by employment of counsel. In the other class of cases her incapacity at common law was not relieved. The married woman’s law, in so far as it confers legal capacity, enables her to act as a feme sole. As to the form of the suit, being joint and several, it is-manifest, from section 1783 of the Code, that the husband is a-mere formal or nominal party ; for, “ if the husband be returned not found, the suit may be prosecuted against the wife alone.” She is the real defendant, and, for the purposes of that suit, is; proceeded against as if she were a feme sole. She may select an attorney, and defend by him. She is before the court, with the rights and privileges of any other suitor. Aud the-court pronouuces judgment according to the record which she-makes, subject to this limitation : that her coverture is a valid reason in law why judgment should not go against her, and the special case to the contrary must be disclosed on the-record. Here it did so appear. The notes were made when Mrs. Travis was unmarried. The husband, who is made a party-defendant for no other reason than to assist, with his advice,, in the protection of her interest, consented with her that judgment should be pronounced. We are of opinion that the judgment against Mrs. Travis is-valid, and affirm the judgment.