Good Land Co. v. Cole

The following opinion was filed February 19, 1907: SiebeckeR, J. In this case appellant raises all of the questions presented in the case of Van Ostrand v. Cole, ante, p. 446, 110 N. W. 891. We find the facts bearing on these questions are the same in the two cases, and the decision upon them in the companion case rules this one in respect to all the questions so presented. Appellant, however, raises the question that plaintiff has no corporate existence and hence cannot maintain this action. Sec. 1771, Stats. (1898), provides that “three or more adult persons, residents of this state, may form a corporation” in the mauner and for the purposes therein provided. The claim is made that married women are not empowered within the provisions of this law to exercise the rights of an “adult” person, and that, if a married^woman is empowered to exercise the rights of an “adult” person under the provisions of this statute, still plaintiff’s alleged incorporation is invalid because two of the three “adult” persons who attempted to incorporate were at the time of its organization husband and wife. The act of forming a corporation as provided by this statute, as between the parties to the undertaking, is in its nature contractual. In this view it seems a natural consequence that any three adult persons having the power to contract may form a corporation upon compliance with and in [470] the manner prescribed by the statute. Appellant suggests that a married woman’s common-law disabilities to contract persist as to the exercise of this right. The acts involved in forming a corporation and in becoming a stockholder in it are alike in their character, and no valid reason is suggested why the statutes removing the common-law disabilities of married women should not apply with equal force to both, and, if she is empowered to make contracts respecting the purchase and ownership of stock in a corporation, it seems but a logical inference that she may be a corporator of a proposed corporation. The right to acquire, own, and transfer property and to conduct her separate business as if she were unmarried involves the exercise of privileges in their nature like those involved in acquiring the right to exercise the corporate powers, and privileges bestowed by the statute. We are cited to no. authority, and from our investigation it seems this question has but seldom called for judicial determination. In Bundy v. Cocke, 128 U. S. 185, 9 Sup. Ct. 242, the competency of a married woman to become a shareholder in a corporation was involved, and it was held that the statute of Arkansas removing the common-law disabilities of a married woman as to contracts respecting her separate property and business enabled her to assume such obligations. In an opinion of the attorney general of Pennsylvania, reported in 18 Pa. Co. Ct. Rep. 492, the qualification of a married woman to become a corporator of a proposed corporation under the Pennsylvania statute was presented, and the conclusion reached that the married woman’s act of that state, removing' the common-law disabilities by reason of coverture, enabled her to become a corporator of a corporation upon the ground that such a right grew out of the contractual capacity bestowed upon her by such enabling laws. 10 Cyc. 166, F, 4; Witters v. Sowles, 38 Fed. 700. The power of a married woman to exercise the right to contract concerning her separate property and business'is fully established by the law of this state and needs no further discussion. See Kriz v. Peege, [471] 119 Wis. 105, 95 N. W. 108; Citizens’ L. & T. Co. v. Witte, 116 Wis. 60, 92 N. W. 443, and eases there cited. We are of the opinion that the term “adult persons,” as used in sec. 1771, Stats. (1898), includes a married woman, and that she has the right to be a corporator of a corporation under the laws of this state. It is urged that the decision in Fuller & F. Co. v. McHenry, 83 Wis. 573, 53 N. W. 896, where it is held that a husband and wife cannot form a copartnership, because the legislature did not intend that such relations as flow from a copartnership in trade should exist between them, controls the situation presented here. The question there involved was whether the common-law disability of a wife to form a copartnership with her husband had been removed, and it was held that the married woman’s act did not contemplate the removal of this particular disability. The decision went upon the ground that the legislation upon this subject contemplated “that the gains the wife should make in the exercise of her limited business powers should he her sole and separate property, and not be in any way subject to the interference, control, or disposal of her husband.” The decision places stress upon the point that -the partnership relation would enable the husband to exercise control over a wife’s-property contributed to a partnership such as the statutes seek to prevent, and thus frustrate the objects of these enabling-statutes. These reasons do not, however, apply to the case before us. The investment by a wife of her separate property in a corporation in which she and her husband are corpo-rators gives the husband no control over it by reason of their relation to the corporation. A stockholder does not hold the relation of a copartner to the corporation or to the other holders of stock in the corporation. Ownership of stock or an interest in the corporate property by a'married woman gives her husband, though he may also own stock in the corporation, no right to control her separate property or to manage her separate business. 1 Cook, Corp. (5th ed.) §§ 10, 11; [472] 10 Cyc. 373. We must bold that the fact that Anna A. Van Ostrand was a corporator of the plaintiff corporation does not affect its legal existence. By the Court. — Judgment affirmed. A motion for a rehearing was denied April 30, 1907.