Leonard v. Duffin

Mr. Justice Mercur

delivered the opinion of the court,

This contention arose on a note executed by the defendants under seal with warrant of attorney to confess judgment. The judgment entered thereon was opened and the defendants permitted to defend. They were children of Samuel Duffin and Jane Duffin, his wife. The father and mother had each borrowed money of the plaintiff. The mother had given her individual notes for the amount of her indebtedness. The notes were due and unpaid. The one in question was given in payment of the sums due by both father and mother. The court held that, to ' the extent the indebtedness of the mother formed a part of the consideration, there could be no recovery by reáson of her coverture. This is assigned for error. It is true, as a general rule, the contract of a married woman is void, so that no action will lie against her for its breach. To'this, however, there are some exceptions. Although no recovery may be had against her, it by no means follows that the equity of the claim may not be sufficiént consideration to support the express promise of a third person to .pay it.

It has been held to be a sufficient consideration to support the promise of the wife herself made after her coverture has ceased and she had become sui juris: Brown v. Bennett, 25 P. F. Smith 420; Trout v. McDonald, 2 Norris 144. The tendency of the authorities is to treat the disability of a married woman as a personal privilege, which does not extend to any person who unites with her in a contract. Thus, if she execute a note jointly with her husband she may not be bound, yet he shall be bound for the whole: Unangst v. Fitler, 3 Norris 135; Hope Building Association v. Lance, 6 W. N. C. 219. If then the indebtedness of a married woman is a sufficient consideration to support a promise made by her after the coverture is removed, we cannot see why it may not support the promise of a third party, 'especially when coupled with the additional consideration shown in this case. The note in question extended the time of payment of the whole indebtedness for one year for money past due; and a further consideration is *221 imported by the note being under seal. The learned judge, therefore, erred in holding the coverture of the mother, when the note was given by the defendants, constituted a defence to the extent of her indebtedness. The second and third assignments are sustained. We cannot say there was any error in opening the judgment. All the grounds alleged are not now before us.

Judgment reversed, and a venire facias de novo awarded.