Obermayer v. Greenleaf

Eagg, Judge, delivered the opinion of the court. The appellants were sued upon a promissory note executed by the wife previous to their intermarriage. The answer admits all the allegations of the petition, but sets up as a defense an ante-nuptial agreement by which it was stipulated, among other things, that each party should have the exclusive ownership and control of their own property, and that said separate property of each should be exempted from liability for the debts of the other contracted previous to the marriage. A demurrer to so much of the answer as embraced this matter was sustained, and judgment rendered for the amount of the debt and interest. The common law liability of the husband, during the existence of the coverture, for the debts of the wife contracted previous to the marriage, has not been changed by our statutes. Any provisions that may exist for the protection of ■ the property of either husband or wife from levy and sale for the debts of the other cannot affect the question presented by the record in this case. The right of the creditors ! to a judgment against both cannot be destroyed by virtue of any| contract between the parties themselves in reference to their property. To hold differently would be to recognize the power f of two individuals in contemplation of'marriage to change the ] established law of the land simply by such an agreement. 1 Certainly this cannot be done. This agreement constituted no defense to the action, and the respondents were entitled to their judgment. It does not appear from the allegations of the answerJhat the wife, in point of fact, had any separate property whatever out of which this debt could have been satisfied. But whether such an . averment would be necessary in order to make the principles of equity, as claimed by appellants5 counsel, applicable, is not material to the determination of this cause. The question as to what property is liable to be taken in satisfaction of this judgment will more properly arise when the respondents shall proceed to enforce it by an execution. The demurrer was properly sustained, and the judgment of the Circuit Court must be affirmed. The other judges concur.