10 D.C. 536 (D.C.D.C. 1879), 18,726, Ritch v. Hyatt

Docket NºAT LAW.— 18,726.
Citation10 D.C. 536
Opinion JudgeMr. Justice WYLIE
AttorneyWilliam Lowndes , for plaintiff, A. C. Bradley , for defendant, It follows, from the views that have been expressed, that the demurrer should be allowed, and judgment entered for the defendant, with costs.
CourtSupreme Court of District of Columbia

Page 536

10 D.C. 536 (D.C.D.C. 1879)




AT LAW.— No. 18,726.

Supreme Court, District of Columbia.

September Term, 1879

I. A married woman cannot be sued when she is a resident in the District of Columbia, under the act of 1869, unless she has a separate estate in said District, in relation to which the contract in suit was made. So held in a case where she gave a joint and several bond for real estate purchased in the city of New York.

II. The common-law disability of a married woman to contract has not been removed by that statute, except when her contract has relation to her previously acquired separate estate. This doctrine does not operate to prevent her right to change the investment of her means, by selling property and purchasing other property with the proceeds, that being a right she has always possessed.


The declaration sets forth that the defendant, jointly and severally with two others, executed a bond dated May 27, 1872, to the plaintiff, as guardian, in the sum of $12,000, subject to the condition for the payment of the sum of $5,725, with interest, on the 1st of December, and that there is due and unpaid a large amount thereon. The following is the concluding averment:

" The defendant was, at the time of making her said bond, a married woman. Before making the said bond the defendant was tenant in common in fee with her co-obligors and the plaintiff's wards of certain land situate in the city of New York, and held by her as her sole and personal property; thereupon a suit was begun in the courts of New York for partition of the said land, to which suit all the owners thereof were parties; the said courts thereupon decreed that partition of the said lands could not be made without great prejudice to the owners thereof, and was difficult, if not impracticable, and that the said land should be sold; thereupon the defendant and her co-obligors, in order to effect partition of the said land, and the defendant also with the purpose of benefiting her sole and separate estate, agreed with the plaintiff to purchase his wards' share thereof; thereupon, and in pursuance of this arrangement, the said land was conveyed in fee under the order of the court to one Westervelt, who acted for the defendant and her co-obligors, and had no beneficial interest in the said land, who immediately conveyed it in fee to the defendant and her co-obligors, all being adults, as tenants in common. The defendant thereupon, with her co-obligors, made the said bond to secure to the plaintiff the purchase-money of his wards' share of the said land, and upon such conveyance one-third of the whole land was vested in the defendant as her sole and separate property."

The defendant demurred on the ground that the contract was executory, and not made in relation to or for the benefit of her separate estate, and that the bond was given as security.

Case certified to be heard at general term.

William Lowndes , for plaintiff, cited Nash v. Mitchell , 3 Abb. New Cases; Wood v. Sanchey , 3 Daly 197; 5 Id. 207, 28; Hinckle v. Smith , 51 N. Y., 21.

A. C. Bradley , for defendant, cited Wells Sep. Estate Married Women, secs. 198, 199, 329, 357; Bishop Law of Married Women, secs. 80, 88; Patterson v. Robinson , 25 Penn. St., 82; Ramberger's Adm'r v. Ingraham , 38 Penn. St., 146; Keiper v. Helpricker , 42 Id. 325; Dunning v. Pike , 46 Me. 463; Brown v. Hermann , 14 Abb. Pr. R., 394; Frecking v. Rolland , 53 N. Y., 425; Carpenter v. Mitchell , 50 Ill. 472; Ames v. Foster , 42 N. H., 381; Jones v. Crossthwaite , 17 Iowa 402; Whitworth v. Carter , 43 Miss. 72; Atkinson v. Richardson , 74 N. C., 458; Pemberton v. Johnson , 46 Mo. 342.


Mr. Justice WYLIE

The defendant, a married woman, was owner of an undivided interest in certain real estate in the city of New York. She united with three of the other owners in purchasing the remaining fourth interest, and in giving their joint and several bond for the purchase-money, five thousand dollars.

The purchase-money was not paid, and an action upon the bond has been brought against her alone in this District.

Her counsel have filed a general demurrer to the declaration, so that we have no information as to any facts, except such as appear upon its face. The declaration avers that she was a married woman at the time of entering into the contract; but it contains no averment of the place where the bond was executed, or of the statute which might have authorized her to make the bond. It may be presumed, however, that she is a resident of this District, because she has been sued here, and there is no contrary averment but that the bond was executed in New York, because it relates to a transaction in that city. But of the statutes of New York bearing upon the questions involved in the controversy we have no judicial knowledge, nor does the declaration contain any averment as to their character.

The declaration is in the common form of debt upon bond, where the action is for the recovery of a personal judgment against the defendant, except only the statement that she is a married woman. We are of opinion, however, that the questions arising on this demurrer must be determined according to the laws of this District; so that the omission of the pleader to aver and set out the statute of New York in his declaration, does no injury in his case. If Mrs. Hyatt, being a married woman, resident in this jurisdiction, had no power, according to our laws, to bind herself by the contract in question, such contract cannot be enforced against her in this court, nor do we see how it could bind her even in the courts of New York. The rule on this subject is thus laid down in Story's Conflict of Laws, sec. 65: " That the personal capacity or incapacity attached to a party by the law of the place of his domicil, is deemed to exist in every other country, ( qualitas personam, sient umbra, sequitur ,) so long as his domicil remains unchanged, even in relation to transactions in any foreign country, where they might otherwise be obligatory. Thus a minor, a married woman, a prodigal or a spendthrift, a person non compos mentis , or any other person who is deemed incapable of transacting business sui juris in the place of his or her domicil, will be deemed incapable everywhere, not only as to transactions in the place of his or her domicil, but as to transactions in every other place."

And in section 66 a the same author says: " If, by the law of the place of domicil of the husband, a married woman has a capacity to sue or to make a contract, or to ratify an act, her acts so done will be held valid everywhere. On the contrary, if she is deprived of such capacity by the law of the domicil of her husband, that incapacity exists in relation to all the like acts and contracts, even when done in a foreign country, or with reference to property in a foreign country."

In subsequent sections this doctrine is discussed at great length, and shown to rest upon the soundest principles of reason and public policy, and to be the doctrine not only of the common law, but that also of France and other countries whose systems have been constructed upon the foundations of the civil law. The domicil of the defendant's husband is her domicil, and the District of Columbia being that domicil, the extent of her capacity to make contracts is to be determined, therefore, by the laws of the District, and not by the laws of New York, although the contract in question relates to property situate in that State.

The common-law disability of a married woman to dispose of her property was, to a great extent, removed by the act of Congress of the 10th of April, 1869, which we now quote at length, from the Revised Statutes relating to the District of Columbia:

" SECTION 727. In the District the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage, in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts.

" SECTION 728. Any married woman may convey, devise, and bequeath her property, or any interest therein, in the same manner and with like effect as if she were unmarried.

" SECTION 729. Any married woman may contract and sue, and be sued in her own name, in all matters having relation to her sole and separate property, in the same manner as if she were unmarried.

" SECTION 730. Neither the husband nor his property shall be bound by any such contract made by a married woman, nor liable for any recovery against her in any such suit; but judgment may be enforced by execution against her sole and separate estate, in the same manner as if she were unmarried."

As has been said already, the bond upon which the present action was brought was given by the defendant for the purchase of real estate in the city of New York. We are informed extrajudicially that by the laws of New York a married woman is allowed to become a sole trader, and is, of course, authorized to make purchases and enter into any contracts necessary or proper to carry on her business. She is, also, expressly authorized to " purchase " property as a femesole without restriction. It is believed that similar laws have been enacted in other States. Our statute has conferred neither of these powers on the married woman.

If she possess power to purchase property during coverture, it must be a power implied from these words in section 727: " or acquired during marriage in any other way than by gift or conveyance from her husband."

We think that no such power can be derived from language so general and vague, except by a forced construction of the statute. The statute was evidently framed in this respect, with reference to an...

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