Habenicht v. Rawls

The opinion of the court was delivered by Mr. Justice McIver.

On January 24,1883, the defendants, Rawls & Wilhalf, made the notes sued on payable to the plaintiff, and before their delivery to him they were endorsed by the other two defendants, Jennie Agnew then and now being a married woman. The notes were given in discharge of a lien held by the plaintiff on the stock of goods belonging to Rawls & Wilhalf. Mrs. Agnew had no interest in the stock of goods, and received no consideration for her endorsement. She was, therefore, practically, a mere surety for the debt of another; and the sole question raised by this appeal is whether she, being a married woman, was capable of making such a contract.

At common law, there is no doubt that she had no such capacity, and, therefore, the inquiry is whether she has, by statute, been endowed with the power to make such a contract. That the act of 1870, incorporated in chapter C. of the General Statutes of 1872, page 482, section 3, did confer'upon a married woman the power to make any contract which a feme sole could make, even to the extent of becoming surety for her husband, was settled by the cases of Pelzer, Rodgers & Co. v. Campbell, 15 S. C., 581, and Clinkscales v. Hall, Ibid., 602. But at the very next session of the general assembly, which convened only a very few days after the decisions in the cases just recited were rendered, the law which had been thus construed in those cases was altered so as to limit the power of a married woman to contract, and the question is as to the extent and effect of that limitation.

By the law, as it formerly stood, it was declared that “a married woman shall have the right * * to contract and be contracted with in the same manner as if she were unmarried” ; but by the law as it stood at the date of the alleged contract here in question, and still stands, it is declared that “a married -woman shall have the right * * to contract and be contracted with, as to her separate property, in the same manner as if she were unmarried” ; the five words italicised having been inserted as an amendment to the law as it formerly stood; so that the question raised by this appeal is narrowed down to the inquiry as to the *465 effect of those five words. It seems to us that the most natural and the proper construction of the terms of this act, as amended, is that adopted by the Circuit Judge: that the contract which a married woman is therein authorized to make is “as to her separate property, must have reference to her separate property, must concern her separate property.”

It will be observed that the question is as to what contracts a married woman may make, and not as to their effect after they have been made. If a given contract is one that the law authorizes a married woman to make, then its effect is, and must necessarily be, the same as that of a contract of a person not laboring under any disability. It is very clear that the legislature intended to make some alteration in the law as it formerly stood, and we think it equally clear that the intention was to limit the power of a married woman as to the kind of contracts which she was permitted to make,'viz., to those in relation to her separate property. As we have seen, prior to the amendment a married woman could make any kind of contract which a person sui juris could make, and the intention undoubtedly was to alter this, and hence her general power to contract was qualified by the words constituting the amendment, so that, while formerly she had the unlimited power to contract, now she can only make contracts “as to her separate property.”

We are unable to discover anything in the act which indicates that the intention of the legislature was simply to confine her liability on any contract, which she might choose to make, to her separate estate, as is contended for by appellant. There is nothing in the act which shorvs that the attention of the legislature was directed to the kind of property which could be held liable for the performance of a married woman’s contract; and, on the contrary, the language used shows that the legislative mind was directed to the hind of contract which she was to be permitted to make, and not to the hind of property which could be resorted to in ease of a breach of the contract. Yery recently, before the law was amended, it had been determined, as we have seen, although there was no little contrariety of opinion upon the subject, as is well known, that a married woman had the same capacity to make any kind of contract as any other” person, and the irresistible *466 inference is that it was this that the legislature intended to alter, so as to confine the contracting power of a married woman to a certain class of contracts, to wit, those which were made as to her separate estate.

We are not 'aware that any controversy had arisen or any ad-: judication had been made as to the kind of property which could be made liable for the breach of a married woman’s contract, and, therefore, no occasion had arisen for an alteration of the law in that respect. Indeed, we do not see how such a controversy could have arisen, for the old code, as well as the code of 1882, expressly provided that damages recovered against a married woman could only be collected out of her separate estate. Section 298 of the old Code, which is in this respect the same as section 296 of the amended Code, provides that “in an action brought by or against a married woman, judgment may be given against her as well for costs as for damages, or both for such costs and for such damages, in the same manner as against other persons, to be levied and collected of her separate estate, and not otherwise.” And in section 310 of the old Code, the provision was that “an execution may issue against a married woman, and it shall direct the levy and collection of the amount of the judgment against her from her separate estate and not otherwise;” and the same provision is found in section 307 of the present Code. So that it is very clear that the construction contended for by the appellant, to wit, that the amendment now under consideration was simply designed to limit the liability of a married woman on her contracts to her separate estate, cannot be the correct one; for such a construction would make the amendment in question wholly unnecessary, as that was the law before.

We are therefore of opinion that the object of the amendment was not to indicate the kind of property which could be made liable for the breach of a married woman’s contract, but to limit her right to contract, so that she could only make such contracts as, at the time they were made, related to or concerned her separate property. Hence, before a married woman can be'made liable for the breach of a contract alleged to have been made by her, it must be made to appear, either from the inherent nature of the contract or otherwise, that the contract was made in rela *467 tion to or concerned her separate property. Even if she declares in express terms her intention to bind her separate estate, that alone- will not be sufficient to render the contract valid, for the question is as to her power, which is to be determined by the nature of the contract itself, and not as to her intention to bind her separate property. If, therefore, a wife should sign a note as surety for her husband, or indeed for any other person, and should declare in the note in express terms her intention to bind her separate estate, that would not make the contract valid as to her unless it was made to appear that the contract, though executed by her as surety, was designed to benefit her separate property or in some other way related to or concerned such property.

We have not deemed it necessary to go into a consideration of the very numerous cases elsewhere upon questions similar to the one now before us; for while the statutes of the various States are somewhat like our own, yet they differ sometimes very materially in their phraseology, and in the very great conflict of authority abroad we have thought it more likely that we would reach a correct solution of the question by confining our attention to the terms of our own statutes, viewed in the light of our own past legislation and adjudications.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

Mr. Chiee Justice Simpson concurred.