Clawson v. Hutchinson
| Decision Date | 03 March 1879 |
| Docket Number | CASE 690. |
| Citation | 11 S.C. 323 |
| Parties | THOMAS W. CLAWSON AND C. E. SPENCER, EXECUTORS, v. A. E. HUTCHINSON AND SUSAN J. HUTCHINSON, HIS WIFE. |
| Court | South Carolina Supreme Court |
A husband held liable for the debt of his wife, contracted by her dum sola , in an action commenced against them in 1867.
Before ALDRICH, J., at York, September Term, 1878.
Susan J. Dunlap executed, in 1860, a sealed note, payable to W. J Clawson, administrator of J. P. Dunlap, on January 1st, 1862. In 1863 she intermarried with A. E. Hutchinson. Suit was commenced on this note against Hutchinson and wife in February, 1867, by W. J. Clawson. In December, 1877, W. J Clawson died, and his executors, Thomas W. Clawson and C. E Spencer, by proper order, became the plaintiffs.
At the trial the defendant, A. E. Hutchinson, requested the court to charge the jury-
That the defendant, A. E. Hutchinson, the husband of the defendant, S. J. Hutchinson, is not liable on the note executed by his wife before her marriage, his liability being removed by the provisions of the act of 1870, relating to the rights of married women.
His Honor refused so to charge, and the defendant, A. E Hutchinson, excepted.
Verdict for plaintiffs.
A. E. Hutchinson appealed to this court, upon the ground that his Honor erred in refusing to charge the jury as requested.
Mr. J. F. Hart , for appellant.
At common law, the husband became liable for the wife's debts, contracted prior to the marriage. Death of husband or wife, or divorce, relieved the husband or his estate. 1 Pars. on Cont. 344.
What was the reason of the law? Because the wife could not be imprisoned for her ante-nuptial debt without her husband. Reev. Dom. R. 144-5. Another reason would seem to be, that the person of the wife, as well as her goods and chattels, was merged in the husband.
The husband's liability for the wife's debt was not in the nature of a contract with her creditor. If so, his estate would have been liable after his death. " The debt is not transferred to him." Id.
If his liability is not by contract, then he became liable merely because the remedy upon her contract could not be applied, except by joint suit against the husband and wife; and, consequently, a joint judgment resulted. In no case could the wife be sued alone. The husband's liability-existing during coverture only-was only an incident to the remedy.
II. If only an incident to the remedy, it is removed by Article XIV., Section 8, of the constitution, and the act of 1870. Gen. Stat. 482; 14 Rich. 134; 7 S. C. 88; which compare with 1 S. C. 352, and see changes wrought by act of 1870.
III. This constitutional provision does not apply only to future debts or marriages. Article I., Section 10, of the Constitution of the United States does not apply, for there is no contract here of the husband; it is only a part of the remedy which may be impaired. Cooley on Const. Lim. 357; Potter's Dwarris on Stat. 471; 13 N. Y. 299; 1 How. 316.
The cases confine the constitutional application to the remedy existing against the contracting party at the time the contract was entered into, and not to such incidental remedies as may afterwards adhere to it. 4 Wheat . 197; 12 Wheat . 213; 2 How. 609; 13 Rich. 129; 2 S. C. 224, 226.
Creditors had no vested rights in such cases to be impaired by act of 1870. The death of either party would have destroyed the remedy against the husband. 15 Wend. 360.
But the legislature may divest vested rights. 8 Pet. 110; 4 S. C. 224.
Mr. C. E. Spencer , for respondents.
1. There has been no change of the common law rule which makes the husband liable by mere implication.
The liability grew out of the practice which required the joinder of the husband in an action for the debt, and not out of the doctrine of the marital rights. 2 Bish. on Mar. Wom. , § 312; 5 Duer 186. The constitution and act of 1870, standing alone, make no change. Code , § 137.
2. There has been no change of the law by positive enactment. Section 3 of act of 1870, is inoperative because not disclosed in the title to the act. Const., Art. II. , § 20; Cooley on Const. Lim. 81-2, 149-50. Its incorporation into Revised Statutes does not cure defect, for they are void so far as they contain new matter. Const., Art. V. , § 3; Art. II. , §§ 20, 21; 14 Stat. 207.
3. The law discharging the husband from liability is only prospective. Such construction will never be given if another is possible. Sedg. 173; 7 Johns. 499; 5 Duer 186, supra; 13 Rich. 277.
4. The law, if intended to be retrospective, is to that extent, null and void. It would violate Article I., Section 14, of our constitution. Cooley 362; 2 Kern. 202; 5 Duer 192, which is in all respects like the case at bar; 15 Wall. 610.
Mr. J. S. R. Thomson , same.
Mr. J. H. Rion , contra.
The question is whether the provisions of the constitution and the statutes passed under it, declaring the rights of married women as to their separate property, destroys the husband's liability for the wife's debts dum sola , where the marriage took place and the action was brought prior to the adoption of the constitution. The note in suit was given by the wife of the defendant dum sola in 1862, and this action was commenced in 1867. The constitution declares " that the real and personal property of a woman held at the time of her marriage, or which she may thereafter acquire, either by gift, grant inheritance, devise or otherwise, shall not be subject to levy and sale for her husband's debts, but shall be held as her separate property, and may be bequeathed, devised or alienated by her the same as if she were unmarried; provided , that no gift or grant from the husband to the wife shall be detrimental to the claims of his creditors." Article XIV., Section 8. Under this provision, standing by itself, the husband would still remain subject to his common law liability for the debts of his wife prior to marriage, which would be manifestly unjust after taking from him that interest in his wife's property that was the ground of such common law liability. Accordingly the...
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