Davis v. First National Bank

Gantt, J.

The plaintiff in error was sued upon a promissory note, dated June 26, 1871. The main facts disclosed by the testimony substantially show, that the plaintiff had deposits of money in her own name, and to her own account and credit, with J. IT. Rogers & Co., bankers of Cheyenne, W. T. The note was given to settle the amount overdrawn on this account by plaintiff; and J. H. Rogers indorsed, sold, and delivered, the note to the defendant in error before it became due. A large portion of these deposits were made by the husband of the plaintiff; but he says, that they were made for her separate use, on her account, and to her credit. J. H. Rogers & Co. made some collections for the plaintiff, issuing out of her separate property, and placed the same to her credit in the bank account, and, also, paid some taxes for her, and charged the same to her account with the bank. The plaintiff owned, in her own right as her separate property, considerable estate in Cheyenne, W. T., and also in Omaha, and .Douglas county, Nebraska. The money drawn from the bank upon her checks was mostly, if not all, expended by her in building a house on her lands, costing six thousand dollars, in improving her property, *245 and some “ was used for living of family, clothing, and household expenses.”

Now, the main question, presented for consideration by the pleadings and exceptions taken in the case, is, that the plaintiff is a married woman, and, therefore, under the facts in the case, a personal judgment at law cannot be sustained against, her upon the note. It seems very clear from the testimony in the case, that the deposits made by the husband were for the separate use of the plaintiff, and became her separate property, and were controlled, drawn out of the bank, and disposed of by her for her own use. No other person claimed any right to, or ownership over the fund; and, therefore, the bank held the money in trust for the plaintiff, and subject to be paid out only upon her orders. The bank account was, therefore, exclusively her own separate business; and by overdrawing her account she incurred a debt, which it seems was with reference to, and upon the faith and credit of, her separate estate, and the rule of the common law is, that, in regard to such separate property, she is considered as a feme sole. Perry on Trusts, Sec., 32. Hill on Trusts, 121.

But the settled doctrine of the common law is, that the general engagements of a married woman, in respect to her separate property, could only be enforced in equity; and this, not upon the ground that she could make valid contracts in law or equity, but because her honest engagements ought to be answered; and, hence it is said, that “intimately connected with the right of a married woman to dispose of her separate property, is the right or power of such feme covert to contract debts and charge her separate estate, either by specific agreements in relation to it, or by general engagements; * * * and her separate estate will be bound to make good her contracts, and it may be reached by proper proceedings, though she is not personally liable.” Perry on Trusts, *246 Secs. 596, 657, 662. Penty v. Simonson, 2 Beas., 232. Glass v. Warwick, 40 Penn. State, 140. But in more recent times, many of the states have, by statutory law, made radical and thorough changes in the condition of a feme covert, and incompatible with that simplicity from which many of the common law rules have been derived. These statutes have legalized the contracts of married women; and. so far as her separate property is concerned, she is a feme sole, and can legally contract and deal with her property as she pleases. She can bind it by general engagements; but “it should appear that the engagement is made with reference to, and upon the faith and credit of her estate; and the question, whether it is so or not, is to be judged by the court.” Perry on Trusts, Sec. 659. Frary v. Booth, 37 Vt., 78. Todd v. Lee, 15 Wis., 365 . Same v. Same, 16 Id., 480 . In regard to her property it is said, that this change made by statutory law “in the relative rights and powers of husband and wife, must of necessity, give a different operation to the rules of law by which they are to be governed. The right being vested in the wife by statute, it must, if the act is to be enforced, remain intact until she consents to dispose of the property, for the right includes full dominion over it; ” and, therefore, her property, both real and personal, is to be under her sole control, and to be held, owned, and possessed by her the same as though she were unmarried; and in respect to it, she alone has the jus disponendi. Emerson v. Clayton, 82 Ill., 496. Jones v. Crosthwaite, 17 Iowa, 402 . Todd v. Lee, 15 Wis., 380 .

Our legislative act, “ relating to the rights of married women,” approved, March 1, 1871, provides that, “a married woman, while the marriage relation exists, may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same, in the same manner, to the same extent, and with like effect, as a married man may, in relation to his real and *247 personal property;” and that “a woman may, while married, sue and be sued in the same manner as if she were unmarried.” It is not necessary now, to inquire into the wisdom of the act in regard to the extent it goes in legalizing the contracts of a married woman, or in regard to the right of action by or against her, as though she were a feme sole. The statute confers on her the right and power to make legal and binding contracts; it gives her the legal right to sue, and makes her legally liable to be sued on her contracts, in the same manner as if she were unmarried, and the court must expound the law as it finds it made by the constitutional law making power. But the rule must be observed, that all such contracts of a feme covert must be with reference to,-.and upon the faith and credit of, her separate estate. We think the case at bar comes within this rule; and, therefore, the judgment of the court below should be affirmed.

Judgment affirmed.