« PreviousContinue »
"Sec. 4996. A married woman shall sue and be sued as if she were unmarried. and her husband shall be joined with her only when the cause of action is in favor ol or against both her and her husband."
"Sec. 5319. When a married woman sues or is sued, like proceedings shall be had and judgment rendered and enforced as if she were unmarried, and her property and estate shall be liable for the judgment against her, but she shall la entitled to the benefits of all exemptions to heads of families.”
In Jenz v. Gugel, 26 Ohio St. 527, 529, it appeared that Gugel and wife executed a promissory note to Jenz for the husband's debt. Jenz brought suit a: law and the common pleas rendered judgment against the husband, but held the wife not liable. The Supreme Court overruled a motion for leave to file a petition in error and said:
"Counsel seem to argue that the 28th section of the code as amended March 30, 1874 (71 Ohio L. 47), gives the right to sue the wiie upon such note. We think otherwise. That 'section was not intended to enlarge or change the liability of the wife, but merely to change the form of the remedy."
And this is our answer to all that can be said as to the claim that the section of the statute under consideration authorize suit at law against the wife.
The only material difference between the original and amended section 5319, so far as the present case is concerned, is that the former provided that judgments against a married woman might be satisfied by execution against “her separate property and estate," while the latter provides that “her property and estate shall be liable for the judgment against her."
The word "separate" is dropped out of the amended section, thus making the wife's general property as well as her statutory separate property subject to execution.
The statute giving the right to separate property specifies nearly all the means of acquiring it which can exist, but not all. This chattel property may be acquired by finding (2 Kent, 356) and by occupancy.
The statute provides as to the wife that the "wages of her separate labor" is her separate property, but not the wages earned by the joint labors of herself and husband.
Patent rights and copyrights constitute property, but they are not enumerated in the statute; hence such rights acquired by the wife are not her separate property. So clothing for the wife purchased by the husband with his means is not statutory or equitable separate property. Pratt v. State, 35 Ohio St., 514.
So the wife may create property from materials furnished by her husband, as paintings, statuary and every conceivable article of chattel property
"from 2 needle to an anchor," the innumerable tangible products of her skill and “handiwork.” The statute does not enumerate these as her statutory "separate prop. erty.” The statute is in derogation of the common law, and on general principles is to be strictly construed, so that it shall not extend beyond the fair meaning of the words it employs. It does not in terms include property acquired by “distribution"—the only mode technically in which chattel estates pass by administration under the statutes of distribution, though it is possible that courts may hold that such property may pass to her as statutory separate property under the word "inheritance" in the act of March 23, 1866.
A wife may acquire money under a life insurance policy or by a lottery ticket in her favor procured by the means of her husband or a stranger. A question may arise as to the character of money so acquired. Thus it is certain that married women may acquire many classes of chattel property which remain "general property."
It has been suggested that sections_4996 and 5319, of the Revised Statutes, as amended by act of March 20, 1884, (81 Stat. 65), recognize the right or power of a wife to make contracts generally, and make her property liable to execution on judgment against her.
To this, it may be said: The power to make contracts, is given by sectior 3109, and beyond this there is no power to contract; this has been shown to extend only to separate property:
Then, section 4996, recognizing this power to contract, authorizes a suit an.1 judgment directly against the wife on such contracts.
The statute of April 3, 1861, (1 Sayler, Stat. 63) first creating separate prop. erty rights preceded that of March 23, 1866, 2 Sayler, 947 giving a wife the power to make contracts as to her separate property. The act of 1861, made the wife's separate property liable to execution against husband and wife, "upon any cause (of action) existing against her at their marriage, or upon any tort commit. ted by her during coverture."
The act of 1886, first gave her a limited power to make contracts as to her separate property, and first made her property liable to execution on a judgment rendered on a contract "concerning her separate property.".
At the December term, 1877, the Supreme Court Commission, in Rice v. Railroad Co., 32 Ohio St., 380, decided that when a wife gave a note for the benefit of herself or her separate property, an intention to charge her separate property in equity, would not be inferred merely from the execution of the note.
Thereupon the legislature passed the act of January 21, 1879, (Rev. St. 4995. 5319) authorizing a suit in such case and judgment at law directly against the wife. with execution against her "statutory separate property."
The object of the statute was to give a remedy as at law, because by the common law there was no remedy at law, and a remedy in equity was denied in Rice r. Railroad Co. This case was overruled at the January term, 1880, in Williams v. Urmston, supra, but not until after the statute had been passed.
Then came the act of March 20, 1884, amending sections 4996 and 5319, so az to reach, not merely the wife's statutory separate property, but all "her property and estate."
This latter act does not relate to the power to make contracts at all; it does not deal with that subject, but a wholly different one.
The two statutes are not even in pari materia. The one gave a right of action at law where none existed before, the other enlarged the property subject to execution at law, but in no way affected the power to make contracts.
The act relating to the mode of sủing, and as to judgments, was passed Marin 20, 1884, (81 Stat. 65), to meet the decision in Rice v. Railroad Co. At the time it was passed, the power of the wife to make contracts, was regulated by the act of March 23, 1866, (2 Sayler Stat. 947; Rev. Stat. 3103), and was limited in these words: “She may, in her own name, during coverture, make contracts for labor and materials for improving, repairing and cultivating the same, her (separate property) and also lease the same for any period not exceeding three years.'
It is certain therefore, that the act of March 20, 1884, had no reference to the power of the wife to make contracts; it only recognized the power then existing.
Then came the act of April 14, 1884, (81 Stat. 209), amending sections 3108 and 3109 of the Revised Statutes, and enlarging the wiie's power to make contracts, by giving her authority, “in her own name, during coverture,” to “contract to the same extent and in the same manner as if she were unmarried," in relation to her separate property.
It does not even give her power to contract as to what little remains of her general property; that is very naturally in accordance with the logic of the statute, which still retains some general property, subject to the marital rights of the husband, and as to which he may of course exercise his rights.
If the statute gave her power to make contracts as to that, it would present the strange anomaly of giving conflicting powers; a power in the wife, a power in the husband.
Nit suit unquam, sic impar sibi.
The result from all these considerations is: That the promissory note now in question, does not impose on the married woman maker, any legal liability on which judgment at law could be taken against her.
The second question in this case is: Can a married woman execute a valid warrant of attorney to confess a judgment against herself as surety on a promissory note having no connection with her separate property? I maintain she can
Even if a wife can make a contract as surety on a promissory note yet she can not execute a warrant of attorney to confess judgment against herself. The relation of principal and agent arises in
in contract. But agency involves more than contract. It effects a delegation of power. This delegation of power is denied to a wife at common law. The common law denial sub. sists until repealed or abrogated by statute. The statute gives a power to contract but does not give authority to delegate the personal power to act or to contract. Hence the warrant of attorney executed by the wife in this case is void.
Thus in 2 Bishop on Married Women, 380, the doctrine is stated that: “A married woman can not execute a letter of attorney, consequently where a judg. ment has been rendered against husband and wife on her warrant of attorney it was set aside.” Henchman v. Roberts, 2 Har. Del. 74; Butler v. Wilder, 6 Hill. N. Y., 242; Mendenhall v. Springer, 3 Har. Del. 87; Stevens v. Dabarry, Minor, 379; Patton v. Stewart, 19 Indiana, 233.
And Bishop says the American cases seem to "deny to the wife the power * act by attorney even in things where she can act personally." Whitmore v De. lano, 6 N. H. 543.
An attempt to clothe a married woman with power to contract as if she were unmarried, and then to add to this the authority to delegate her powers to others is the sublinie of innovations fanaticism and folly. Napoleon said there is but one step from the sublime to the ridiculous.” In material sociology it only remains to enlarge the powers of the wife, so that her duties may all be períormed by proxy, and justily the blasphemous sacrilege by a literal reading oi the maxim qui facit per alium iacit per se quite as excusable as a literal reading of the statute under consideration. If this will not reach the climax mentioned by Napoleon it will only remain to legislate to married women the perfect liberty of absolute feminine license, and then move onward with the satanic teachings which deny the right o: property; which sanction plunder and robbery; which justify murder to accom plish pillage, and substitute the power of dynamite for the logic of reason and the precepts of morality.
The result is that the warrant of attorney in question is void, and the judg: ment thereon must be set aside.
Kennedy & Steen, for defendant. PRICE, J.
The question raised by the demurrer may be stated in this foru : Can a married woman execute a valid promissory note as surety for a third person, without any consideration connected with her separate property, upon which a personal judgment can be rendered against her ?
Counsel for the demurrer maintain that it was proper to take a personal judgment against the plaintiff, a married woman, on a note on which she was surety merely, no consideration having passed to her; and · which had no reference to or connection with her separate property. In support of their position they cite the case of Williams v. Urmston and Hancock. 35 Ohio St., 296 ; sec. 5319, of Revised Statutes, as amended March 20, 188+ (81 Ohio L., 65); and sec. 3109, Rev. Stat., as amended April 14, 1884 (81 Ohio L,, 209.)
In the case of Williams v. Urmston et al. the court say :
“A married woman, having a separate estate, may charge the same, in equity, by the execution of a promissory note as surety for her husband or another. When a married woman, having a separate estate, executes a promissory note as surety for the principal maker, a presumption arises that she thereby intends to charge her separate estate with its payment."
It will at once be seen that the question decided in that case was very different from the one we are now considering. That decision was, that a married womar might charge her separate estate, in equity, by the execution of a promissory note as surety. While the question belore us is: Can a judgment at law be taken nainst a married woman on a promissory note which she has execu as surety merely, and which has 10 connection with her separate estate?
The quiestion depends, in my judgment, upon the construction to be given to the legislation of 1884.
March 30, 1874 (4th Sayler, 3222), the legislature enacted a law as follows:
“Section 28. When a married woman is a party, her husband must be joined with her, except that when the action concerns her separate property, or is upon a written obligation, contract or agreement signed by her, or is brought by her to set aside a deed or will ; or if she be engaged as owner or partner in any mercantile or other business, and the cause of action grows out of or concerns such business; or is between
her and her husband, she may sue and be sued alone. And in all cases where she may sue or be sued alone, the like proceedings shall be had and the like judgment rendered and enforced in all respects as if she were an unmarried woman. And in every such case her separate property and estate shall be liable for any judgment rendered therein against her, to the same extent as would the property of her husbaud, were the judgment rendered against him; provided, that she shall be entitled to the benefit of all the exemption laws of the state to heads of families. But in no case shall she be required to prosecute or defend by her next friend.”
That section was carried into the Revised Siatutes in the following form :
"Section 5319. When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced, as if she were unmarried, and her separate property and estate shall be liable for the judgment against her; but she shall be entitled to the benefit of all exemptions to heads of families.”
March 20, 1881 (vol. 81 Ohio L., p. 65), said last quoted section was amended so as to read as follows:
"Section 5319. When a married woman sues or is sued, like proceedings shall be lid and judgment rendered and entorced as if she were unmarried, and her properiy and estate shall be liable for the judgment against her, but she shall be entitled to the benefits of all exemptions to the heads of families.”
This last section was in force at the time plaintiff executed the note described in her petition ; and at the time judgment was rendered against him.
The act of March 30, 1874, authorized a married woman to be sued alone "upon a written obligation, contract or agreement signed by her," and further provided that "in all cases when she may sue or be sued alone, the like proceeding shall be had and the like judgment rendered and enforced in all respects as if she were an unmarried woman.”
We have two decisions of our Supreme Court bearing upon the construction of the section as it then stood.
In the case of Fredrika Jenz v. John Gugel and Sophia Gugel, 26 Ohio St., 527, the court decide:
"1. Section 28 of the civil code, as amended March 30, 1874 (71 Ohio L., 47;) was not intended to enlarge or vary the liabilities of a married woman, but merely to change the form of remedy. 2. No recovery can be had against a married woman upon her promissory note, whether executed before or after the date of said amendatory act, unless it appear that she has separate property subject to be charged therewith."
In the case of Patrick v. Littell et al., 36 Ohio St., 79, the court decide :
"In an action under section 28 of the Code of Civil Procedure, as amended March 30, 1874, against a married woman, upon : er obligation in writing to pay for services rendered or money advanced, for the benefit of her separate estate, it is not error to render a personal judgment against her.”
This last case simply decides that it is proper to render a judgment at law—a personal judgment-against a married woman, under the section referred to, when she is sued upon an obligation “for the benefit of her separate estate.”
L. B. 5
It does not, however, pretend to overrule or interfere with the principle laid down in Jenz v. Gugel et al., supra, that that section “was not intended to enlarge or vary the liabilities of a married woman, but merely to change the form of remedy."
Section 5319 Rev. Stat., as amended March 20, 1884 (vol. 81 Ohio Laws, p. 65), differs somewhat in language from section 28, of the codle of civil proceedure, (Sayler 3222) and from original sec. 5319 Rev. Stat., but there is not, in my judgment, any change that effects the principal before stated, to-wit : That the section was not intended to enlarge or change the liabilities of a married woman, but merely to change the form of remedy.
In my judgment the question of the liability of a married woman upon a promissory note, on which she is merely surety, and having no reference to or connection with her separate property, depends upon the true construction of sec. 3109 Rev. Stat., as amended April 14, 1884 (vol. 81 Ohio Laws, 209), which reads as follows:
"Section 3109. The separate property of the wife shall be under her sole control, and shall not be taken by any process of law for the debts of the husband, or be in any manner encumbered by him, and she may, in her own name, during coverture, contract to the same extent and in the same manner as if she were unmarried."
The court of common pleas of Hamilton county, has used this language:
"The manifest effect of the law as it stands now, by virtue of the amendments of 1884, is to remove all restrictions upon the power of a married woman to contract, as if single. She may, in her own name make contracts and bind herself to the same extent and in the same manner as if she were unmarried; she shall sue and be sued as if sole, and like proceedings shall be had and judgment rendered and enforced as if she were sole. In such suit it is not necessary to aver or prove that she is feme covert, or the owner of a separate estate, or that she contracted the debt or obligation with reference to her separate estate. "American Law Record,” December, 1886, page 388. .
This court held substantially the same on a former occasion ; but now that the question is before me again, I shall endeavor to decide it without reference to any former opinion of my own.
What is the true construction of section 3109 (vol. 81 O. L., 209.) ?
The language is: “And she may, in her own name, during coverture, contract to the same extent and in the same manner as if she were unmarried."
This is the last clause in the section, and if it stood alone undoubtedly a married woman would have the same power to contract as a feme sole. But we must look to the whole section, and to the sections connected therewith, in order to arrive, if possible, at the intention of the legislature. The subject with which the legislature was dealing was the separate property of the wife.
The preceding sectiou, 3108, relates to the separate property of the wise, and specifies what shall “be and remain her separate property.”
The first clause of sec. 3109, as amended, provides that the separate property of the wife shall be under her sole control; this first clause is connected by the conjunction, "and" with the second clause of the section, which also relates to her separate property, and to nothing else; and the last clause of the section, already quoted, is connected with the second clause by the conjunction and."