Deering v. Boyle. cases relied on to show that a married woman cannot make a valid contract, charging her separate estate, are actions at common law in States where equity and common-law jurisdictions are kept separate and distinct. Of course such cases are not applicable in this State. Of this class is the case of Jones v. Crosthwaite, 17 Iowa, 393, referred to by counsel for plaintiff in error. In connection with this case, see the case of Patton v. Kinsman, 17 Iowa, 428. Another class of cases is where a married woman, at the time she makes the contract, appropriates a certain piece of property (either her's or her husband's) for the payment of her obligation, by way of mortgage or pledge, or the like. In such cases, it has been held that no other property was intended to be appropriated or charged, upon the maxim, that the express mention of one thing is the exclusion of another. Such was the case of Johnson Co. v. Rugg, 18 Iowa, 137, referred to by counsel for plaintiff in error. Of course this class of cases is not applicable to the case at bar. Another class of cases is where a court of equity, under the peculiar circumstances of the case then under consideration, there being fraud, overreaching, or an undue advantage taken of the woman's affections, frailties or infirmities, could not in equity and good conscience charge her separate property. Of course that class of cases is not applicable to this case. In another class of cases we don't think the law has been correctly laid down. Such is the case of Yale v. Dederer, 22 N. Y. 450, referred to by counsel for plaintiff in error. The true doctrine seems to be this: Whenever a married woman enters into a contract (not for necessaries) for the payment of money, she does not bind her husband nor her husband's property, nor herself personally; but she binds her own property which she holds separate from her husband. It seems scarcely necessary for us to say any thing with reference to our own statutes concerning the rights of married women, except to say that they do not change the rules of equity so as to affect the decision of this case. But still it may not be out of place to offer a few suggestions concerning them. Section 2 of chapter 62, General Statutes, 563, reads as follows: "SEC. 2. A married woman, while the married relation subsists, 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 personal property." Deering v. Boyle. Other sections provide that a woman may sue and be sued, as if she were sole, may carry on trade and business, perform labor or service, etc., on her sole and separate account; but section 2 is the one more directly involved in the consideration of this case; and in fact that portion of said section which provides that a married woman "may enter into any contract with reference to" her separate estate "in the same manner, to the same extent, and with like effect, as a married man may in relation to his real and personal property," is about all that we need consider. It is claimed that the note sued on is not a contract "with reference to" or "in relation to" the separate property of Mrs. Deering. That it has no direct reference to any specific article or portion of said property, will certainly be conceded. But if the great weight of judicial decisions in this country upon contracts made by married men, or other persons not under disability, is to have any force in the determination of this question, then it must be equally clear that such a contract as the note sued on has reference, more or less remote, to the general property of the person signing the same. If it has not such reference, then it has no reference to any thing whatever, but is totally and absolutely void. A married woman cannot, by her contract, bind herself personally, as a married man can, and therefore, if she does not bind her property by her general engagements, she does not bind any thing. Now, as a married woman may enter into contracts with reference to her separate property "in the same manner" as a married man may in relation to his, we shall proceed to consider in what manner a married man may enter into contracts with reference to his property. And here it will be proper for us to say that so far as this case is concerned no distinction can be made between the contract of a married man and the contract of any other person not laboring under any disability. Those who claim that the contract of a married woman has no reference to her separate property unless expressly so stated in the contract itself, must claim that there can be nothing contained in any contract unless it is contained in the express words or terms of the contract itself. There is some room for such a claim, and decisions of courts may be found to support it; but the great weight of authority in this country is unquestionably on the other side. It is almost universally held that all the laws of the country in force at the time and place where the contract is made, which can materially affect the contract, enter into and form a part of the contract. Greer v. Deering v. Boyle. v. McCarter, 5 Kan. 18, 22; Mather v. Bush, 16 Johns. 233, 249-251; Blanchard v. Russell, 13 Mass. 1, 16; Moore v. Fowler, Hampstead C. C. 536; Bronson v. Kinzie, 1 How. 315; McCracken v Howard, 2 id. 612; Harrison v. Stipp, 8 Blackf. 455; Nelson v. Rountree, 23 Wis. 371; Jacoway v. Denton, 25 Ark. 625, 642. This is especially true where both parties live in the same State, and where the contract is made and to be performed in the State where the parties reside. It is said that the parties contract with reference to the laws, and make them a part of their contract. Hence such laws cannot be materially changed without impairing the obligation of said contract. U. S. Const., art. 1, § 10, subd. 1; Bronson v. Kinzie, 1 How. 311, 315. It is true that some courts have said that the remedy given by law for the enforcement of the contract does not enter into or form any part of the contract; but, in the light of other decisions, this is probably not strictly correct. It is probably true that the parties do not contract for the specific remedy in force when they make their contract; but it is certainly as true that they do contract for a substantial remedy. It is true that the remedy may be changed; but unless a substantial remedy still remains, the act changing the remedy is void, tending to impair the obligation of the contract. Oatman v. Bond, 15 Wis. 28; Has. brouck v. Shipman, 16 id. 296; Call v. Hagger, 8 Mass. 430; Conkey v. Hart, 14 N. Y. 30; Jacoway v. Denton, 25 Ark. 625, 642; McCracken v. Hayward, 2 How. 612; Blair v. Williams, 4 Litt. 37, 38, 39, 45; Lapsley v. Brashears, 4 id. 47; Com. Bank of Natchez v. Chambers, 8 Smedes & Mar. 56, et seq. With regard to evidence, see Jackson v. How, 19 Johns. 83; Robinson v. Howe, 13 Wis. 341, 347; Smith v. Cleveland, 17 id. 556, 568, et seq.; Nelson v. Rountree, 23 id. 368, 371. We suppose it is well known by everybody that the property of a married man is liable for all his debts and obligations, although no specific mention of his property be made in his contract. It is not necessary that a court have jurisdiction of his person in order to render judgment against his property on such a contract, subjecting the property to the payment of his debts, or the fulfillment of his obligations. He may be beyond the jurisdiction of the State; but, if his property remains, it is liable. And this liability springs as well from his contract as from the law. As to how far a man contracts with reference to his property when he makes a general contract, with out specifically mentioning any of it, has been many times adjudi Deering v. Boyle. cated in this country. The Federal Constitution, art. 1, § 10, subd. 1, provides that no State shall pass any law impairing the obliga tion of contracts; and under this provision it has been necessary many times to determine what belongs and what does not belong to the contract. Mr. SEDGWICK says: "States may pass retrospective laws, however unjust; may pass acts of a judicial nature, however clearly overstepping the line of legislative power; they may pass acts divesting vested rights; they may violate express provisions of their own constitutions. Acts of these classes, however objectionable, are not within the scope of the restrictions of the Federal Constitution." Sedg. Stat. and Const. Law, 639. only when States pass laws affecting the contract itself that such laws come within the said Federal restriction. In every contract it must be presumed that each party agrees that all his property, except such as may be exempt by law, or such as may be exempted by the terms of the contract itself, shall be liable for the fulfillment of the contract. Hence any general exemption law, exempting all a debtor's property, passed after a contract has been made, would be void, as tending to impair the obligation of the contract. This is the generally accepted doctrine, found, however, only in the elementary works, and in the dicta of courts, and not in any judicial decision, as no State has yet passed any law exempting all the debtor's property. It has been held that where only a portion of the debtor's property was exempted from execution, the law exempting the same was void. Forsyth v. Marbury, Charlton (Ga.), 324; Quackenbush v. Danks, 1 Den. 128; Danks v. Quackenbush, 3 id. 594; Danks v. Quackenbush, 1 N. Y. 129. But now it seems to be settled that a law may be valid that exempts a portion of the debtor's property, such as household furniture, agricultural implements, etc., provided that such portion is not great enough to materially impair the obligation of the contract sought to be enforced. Morse v. Goold, 11 N. Y. 281; Rockwell v. Hubbell's Adm'r, 2 Doug. (Mich.) 197; Bronson v. Kinzie (per TANEY, Ch. J., obiter dictum), 1 How. 311, 315; Cusic v. Douglas, 3 Kas. 123. But how even such laws as those last mentioned can be sustained upon any logical system of reasoning cannot easily be understood. If the question should ever be taken to the supreme court of the United States, that court would probably declare a different doctrine. A statute of New York, exempting, under certain circumstances, all the future Deering v. Boyle. acquisitions of property, was held void by the supreme court of the United States. This law provided that if the debtor should deliver up all his property to be applied in payment or partial payment of his debts, that after a certain time he should be discharged, and that all his future acquisitions should be exempt from such debts. It was held that this law was unconstitutional and void, that it impaired the obligation of contracts. Sturges v. Crowninshield, 4 Wheat. 122. "The court held that the obligation of a contract was not fulfilled by a cessio bonorum, for the parties had not merely in view the property in possession when the contract was made, but its application extended to further acquisitions; and to release them from being liable, impaired the obligation of the contract." 1 Kent's Com. 420. See also upon this subject, McMillan v. McNeill, 4 Wheat. 209; Farmers and Mechanics' Bank v. Smith, 6 id. 131; Ogden v. Saunders, 12 id. 213; Boyle v. Zacharie, 6 Pet. 348; Baldwin v. Hale, 1 Wall. 233; Springer v. Foster, 2 Story, 387; Woodhull v. Wagner, 1 Bald. 300; Moore v. Fowler, 1 Hemp. 536. When a contract is made with a corporation at a time when by statute the stock of the stockholders is liable for the debts of the corporation, the legislature cannot repeal such statute and thereby exempt such stock from the payment of such debts, for such repea! would impair the obligation of the contract made between the creditor and the corporation, which contract the corporation had from the stockholders (who were virtually the sureties of the corporation to the amount of their stock) the implied authority to make. Hawthorne v. Calef, 2 Wall. 10, and cases there cited. In Georgia it has been decided that "a State law which impairs the obligation of a contract made prior to its passage is unconstitutional and inoperative. And it is equally so whether the contract exists in its original shape, or has been merged in a judgment." "A judgment in Georgia constitutes a lien from its date on all the property of the debtor, and is constructive notice to all the world; and this lien is effectual against all subsequent claims to the property derived from and through the debtor." A law which prohibits a levy on a portion of the debtor's property previously subject to an existing judgment is unconstitutional, as it impairs the obligation of a contract." Forsyth v. Marbury, Charlton (Ga.), 324. And where a statute makes it more difficult for the creditor to reach the debtor's property, and thereby substantially interferes with the enforcement of the contract or the collection of the debt, the statute is void. For VOL. XII. - 62 |