Bauer v. Bauer

1. Husband and Wife — Bills and Notes— Separate Estate. — A note executed by a married woman is, as a contract, void, and she cannot be made personally liable therefor. The holding of land in fee by a married woman does not create a separate estate so as to make her liable upon a note signed by her. 2. Justices’ Courts — Filing Transcripts — Practice.—When the transcript of a justice’s judgment is filed in the office of the clerk of the Circuit Court, the court acquires jurisdiction of the case, and may, on cause shown, set aside or modify the judgment — R. C. 1865, p. 901, § 19.

Error to St. Louis Land Court. A promissory note executed by a married woman is not void, and she may be sued on such note — Claflin v. Yan Wagoner, 32 Mo. 252. The justice had jurisdiction — R. C. 1855, p. 925, § 3. This has been repeatedly decided by the courts. In Barton v. Beers, 21 How. Pr. 309, it is said : “ Indeed, the capacity conferred upon her to contract liabilities, and incur debts, creates the necessity of a corresponding liability to action ; for the evil would be greater, than it otherwise would be, if slie can impose upon the public, by making contracts, for which neither she nor her husband is liable. If she acts as a femme sole, she ought in justice to the public to be subjected to all the duties and liabilities of a femme sole.” • The court will observe that this was an action brought before a justice of the peace, and brought before the passage of the act of 1862 in New York (Laws, ch. 172, § 7), which declares that a married woman may be sued in any courts of the State. The cases of Coon v. Brook, 21 Barb. 546, and Diekermann v. Abrahams, 21 Barb. 551, to which reference probably will be made by respondent, and which decide this principle adversely, have been expressly overruled by later decisions— 25 How. Pr. 483, reversing S. C. in 28 Barb. 436 ; Goulding v. Davidson, 12 E. P. Smith, 604 ; Barton v. Beers, 21 How. Pr. 309 ; Klen v. G-ibney, 24 How. Pr. 81, which approves of the case in 21 How. I. A promissory note made by a married woman cannot be enforced at law — Chit, on Bills, 20-24 ; Sto. on Prom. N. 85; Reeves Dom. Rel. 260-70; Roach v. Randall, 45 Me. 438 ; Howe v. Wilde, 34 Me. 566 ; Whiteside, v. Connor, 23 Mo. 461. II. A note or bill drawn or endorsed by a married woman is void — 3 Espitiasse, 266 ; 8 Term, 545 ; 2 H. Black. 1077 ; 3 Willes, 5 ; 1 Strange, 516 ; 1 East, 432; Chouteau v. Merry, 3 Mo. 182. , III. Equity relieves solely on the ground that the contract of the wife does not create a personal obligation, and consequently the creditor would be without remedy at law— 2 Sto. Eq. 268; id. 627, § 1399; Claflin v. Van Wagoner, 252 ; Bretton v. Wilder, 6 Hill, 242; Dorrance v. Scott, 3 Whar. 309. Independently of this, we say that by the statutes of Missouri in force (during the pendency of the proceedings in the court below) the Land Court of St. Louis county had the exclusive jurisdiction of cases of this nature — § 2 of an Act establishing Land Court, R. C. 1855, p. 961, §§ 16 & 17;— and the judgment of the Land Court in setting aside the judgment of the justice, and in recalling the execution, was not only legal but final.