Barton v. Barton

Decision Date04 March 1870
Citation32 Md. 214
CourtMaryland Court of Appeals

APPEAL from the Circuit Court for Talbot County.

This was an action of assumpsit, brought originally in the Circuit Court for Caroline county, by the appellee, for the recovery of a sum of money loaned by her to her husband the testator of the appellants. Upon the suggestion of the defendants, the record was transmitted to the Circuit Court for Talbot county.

The declaration was for the ordinary money counts, to which non-assumpsit and the two following special pleas were pleaded, to wit: "That at the time when the said supposed indebtedness in the said declaration mentioned accrued, the said plaintiff was covert of the said William A. Barton, deceased, and continued to be the wife of the said Barton until his death."

"That at the time when the said supposed promises in the said declaration mentioned were made, the said plaintiff was covert of the said William A. Barton, and continued to be the wife of the said Barton until his death."

On the pleas of non-assumpsit issues were joined, and to the two special pleas a demurrer was filed and ruled good by the Court.

Subsequently the plaintiff obtained leave to amend her nar., and pursuant thereto, filed an amended declaration, which, beside the ordinary money counts, contained the following special count:

That the defendants' testator, in his lifetime, on the--day of August, 1860, agreed with the plaintiff to borrow of her the sum of $2,962.93, and in consideration that the plaintiff would loan to him the said sum of money, the defendants' testator promised and agreed with the plaintiff to pay to her the same, whenever after he should be thereto requested. And the plaintiff says that in consideration of the said promise and agreement so made by the defendants' testator, in his lifetime, she did agree to loan, and did loan to him the aforesaid sum of money.

To this declaration the defendants pleaded non-assumpsit, and issues were joined thereon.

At the trial the plaintiff introduced evidence to show that after her marriage with the defendants' testator, William A Barton, which took place in July, 1861, she agreed to loan and did loan to him sundry notes, and a judgment contained and particularly described in a written memorandum in the handwriting of the said William A. Barton, which were held and owned by her previous to their marriage, which notes and judgment he took into his possession and appropriated to his own use, having agreed and promised, at the time they were so loaned and delivered to him by the plaintiff, to repay the amount thereof to her.

Among the choses in action described in said written memorandum, was a note of the said William A. Barton, dated June 2d, 1859, for money borrowed from the plaintiff, prior to their marriage, amounting to the principal sum of $580.

The defendants offered in evidence the last will and testament of the said William A. Barton, and it being agreed by the counsel on each side that the devise and bequest therein to the plaintiff, were, in due form of law, renounced by her the defendants offered the following prayers:

1st. If the jury find all the facts offered in evidence, the plaintiff is not entitled to recover in this form of action for any money which was loaned by the plaintiff to the deceased, William A. Barton, during the time the coverture existed between them.

2d. If the jury find all the facts offered in evidence, and find from the evidence that any sum of money was loaned by the plaintiff in the year 1860, to William A. Barton, deceased; and that after said loan, the said Barton and the plaintiff were married, and continued to be husband and wife up to the time of the death of the said Barton, then the plaintiff is not entitled, in this form of action, to recover for said loan so made before said marriage.

3d. If the jury find all the facts offered in evidence, and shall find that the notes and judgment referred to in the evidence as having been received into the possession of William A. Barton, were evidences of debts due the plaintiff before her intermarriage with the deceased, William A. Barton, that the plaintiff is not entitled to recover in this form of action for any money received during the coverture on said notes and judgment by Wm. A. Barton, deceased, although he may have promised during the coverture to pay the same to her.

4th. That the plaintiff is not entitled to recover in this form of action any interest upon the loan or other choses in action offered in evidence, that may have accrued during the coverture or existence of the marriage between the plaintiff and the deceased, W. A. Barton.

The Court granted the fourth prayer, and rejected the others.

The defendants excepted to the rejection of their first, second and third prayers, and the plaintiff excepted to the granting of their fourth prayer. The verdict and judgment being for the plaintiff, the defendants appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON, MILLER and ALVEY, J.

William S. Waters, for the appellants.

At common law, no contract, cognizable in a Court of Law, can be entered into between husband and wife during coverture. The action of assumpsit is the proper action at law for recovery upon such a contract. It is the action resorted to in this case, and if such contract could be formed, it would be the proper remedy. This action is founded upon a legal, as contra-distinguished from an equitable contract. The contract may be express or implied. No contract can be made between husband and wife. They are incapable of contracting with each other in law. And no contract will be implied between parties incapable of forming an express contract. 2 Story's Eq., secs. 1367, 1370; 2 Kent's Comm., 129; Story on Cont., sec. 11; Church vs. Imperial G. L. Co., 6 Ad. & El., 846.

The executors can be sued for such debts only as the deceased could be sued for. 2 Wil. on Ex'rs, 1756; Com. Dig., Pl., (2 D. 8;) Went. on Ex'rs, 206.

Does the 45th Art. of the Code modify the relations of husband and wife, so as to enable them to make a legal contract with each other?

The first and second sections of Art. 45 of the Code, provides that "the property, real and personal, belonging to a woman at the time of her marriage, and all property which she may acquire or receive after marriage by purchase, gift, grant, devise, bequest or in course of distribution, shall-- first, be protected from the debts of the husband, and not be any way liable for the payment thereof;" second, be held by the married woman "for her separate use," with power of devising the same as fully as if she were a feme sole, and she may convey the same by joint deed with her husband, provided that if she died intestate, the property shall pass, &c., (as the section directs.)

The third section provides that it shall not be necessary for a married woman to have a trustee to secure to her the sole and separate use of his property.

These provisions of the Code are not all new in Maryland legislation. The only new provision is that contained in the second section, and to this the Act of 1842, ch. 293, in regard to slaves and property made by the industry of the wife, bears a strong resemblance. The Act of 1853, ch. 245, resembles the first and third sections of this Article of the Code. The second section of the Act of 1853, provides that all the property of the wife shall be held "for her separate use," and the third section, that she shall hold it without the intervention of a trustee, that is to say, she has the legal title to her separate property.

At common law, the wife might hold property under and according to the terms of the instrument which conveyed it to her, and if the instrument appointed no trustee, the husband became trustee. She could only hold the equitable title. The Act of 1853, ch. 245, sec. 3, made it unnecessary to consider her husband a trustee for her, unless the instrument creating the trust, appointed a trustee. She held, by this Statute, the legal title. The Code declares that all her property shall be for her separate use; and to all such property as the Code so vests in her, she has the legal title, and, in a conventional trust, the trustee named therein, would hold the legal title, but if none was appointed, she would hold it herself. Bridges & Wood vs. McKenna, 14 Md., 264.

The only effect of the Code, like that of the Statutes referred to, is to determine the condition and title of the woman's property, as affected by the coverture. It does not change in any way the personal relations of husband and wife. It gives them no power to contract with each other. It does not sever the unity between them. The language of the statute cannot be extended by implication; it will be strictly construed. Towson's Adm. vs. Matthews, 10 Md., 254; 2 Bright on Husband and Wife, 224, sec. 13; Grace vs. Darley, 34 N. Y., 296; Ransom vs. Nicolas, 22 N. Y., 111; White vs. Wagner, 25 N. Y., 363; Yates vs. Durden, 18 N. Y., 279.

The fourth section of Art. 45 of the Code, provides "that a married woman, having no trustee, may, by her next friend, sue in a Court of Law or Equity in all cases for the recovery, or security, or protection of her property, as fully as if she were a féme sole."

The Act of 1853, ch. 245, sec. 2, gives to the wife the use of all remedies without the assistance of a next friend, in order to effect the object of that Act, which was to prevent the creditors of her husband from taking her property.

The effect of these laws is to give the wife such remedies as applied to her case. If the right affected was legal, her remedy was a legal one; if equitable,...

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5 cases
  • Horwitz v. Safe Deposit & Trust Co. of Baltimore
    • United States
    • Maryland Court of Appeals
    • May 24, 1937
    ... ... concur, that the estates for life and in remainder were of ... the same legal quality. Barton v. Barton, 32 Md ... 214, 223; Nevin v. Gillespie, 56 Md. 320, 327; ... McCrory Stores Corporation v. Bennett, 159 Md. 568, ... 573, 574, ... ...
  • Fowle v. Torrey
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 3, 1883
    ...138. Johnston v. Johnston, 1 Grant 468. Kutz's appeal, 40 Pa. 90. Riley v. Riley, 25 Conn. 154. Marsh v. Marsh, 43 Ala. 677. Barton v. Barton, 32 Md. 214. Murray v. Glasse, 17 Jur. Rowe v. Rowe, 2 DeG. & S. 294. Darkin v. Darkin, 17 Beav. 578. Slanning v. Style, 3 P. Wms. 334. Huber v. Hube......
  • Munday v. Collier
    • United States
    • Arkansas Supreme Court
    • October 26, 1889
    ...Mansf. Dig., secs. 4624, 4625, 4951. She can sue at law or proceed in equity. 19 Iowa 491; 58 Me. 139; 39 Am. Rep., 307; 39 Vt. 319; 32 Md. 214; 47 Ark. 558; 9 16; 43 Am. Rep., 675; 4 Laws, 164; 19 Hun., 358; 20 id., 472; 24 id., 401; 52 Texas, 294; 90 Pa. 238, 507; 9 Ill.App. 27; 50 Mich. ......
  • Gillespie v. Gillespie
    • United States
    • Minnesota Supreme Court
    • May 11, 1896
    ...At common law the only remedy a married woman had as against her husband was in equity. Porter v. Bank of Rutland, 19 Vt. 410; Barton v. Barton, 32 Md. 214. If a woman can maintain a legal action against her husband during coverture, in this state, it must be by statutory right, and such ri......
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