Bolyard v. Bolyard
| Decision Date | 06 February 1917 |
| Docket Number | 3130. |
| Parties | BOLYARD v. BOLYARD ET AL. |
| Court | West Virginia Supreme Court |
Submitted January 30, 1917.
Rehearing Denied March 13, 1917.
Syllabus by the Court.
A general demurrer by one of two defendants, to a count of a declaration, disclosing lack of right of action against him on its face, is properly overruled.
Misjoinder of codefendants in an action at law, predicated on nonliability, not mere personal privilege, is matter of defense to be given in evidence under the general issue, and cannot be pleaded either in abatement or in bar of the action.
A plea of duress, founded upon an arrest in a lawful proceeding, is not sufficient, if it does not aver that the proceeding was instituted without just cause, or that, being founded upon sufficient cause, it was prosecuted for an ulterior or improper purpose.
A bond executed to a wife by her husband and another party as his surety is, in legal contemplation, void as between her and her husband, and she can maintain no action thereon against him, in a legal forum; but, if such bond is not wholly invalidated by fraud, illegality of consideration, conflict with public policy, or a vice of like character, it is nevertheless binding upon the surety.
A penal bond, executed by a husband to his wife, by way of compromise and settlement of difficulties between them, binding him by its condition to resume and maintain his marital and family relations with her and their children and provide them support and maintenance, is founded upon a good and sufficient consideration, and is not forbidden by any positive law or public policy.
The surety in such a bond is liable thereon for a breach of its condition, in an action at law brought by the wife.
The damages recoverable in such action may include compensation for loss of the husband's society, extra labor imposed upon the wife, and mental suffering arising from disgrace and humiliation.
If, in such case, a verdict is found and a judgment rendered against both the husband and the surety, the judgment will be reversed and the verdict set aside as to the former, and the judgment affirmed as to the latter.
Error to Circuit Court, Tucker County.
Action by Ida A. Bolyard against John M. Bolyard and John H Bolyard. Judgment for plaintiff, and defendants bring error. Reversed, and action dismissed as to John M. Bolyard, and affirmed as to John H. Bolyard.
Chas D. Smith, of Parsons, and D. E. Cuppett, of Thomas, for plaintiffs in error.
J. W Harman, of Parsons, for defendant in error.
The judgment for $854.15, in favor of a wife against her husband and his father, complained of, is founded upon a bond in the penalty of $1,000, executed and delivered by way of compromise and settlement of controversies or troubles between the husband and wife, as well as for procurement of the dismissal of a statutory proceeding in a justice's court against the former, for nonsupport. The bond bound the husband to renew housekeeping with his wife and family, within 20 days from the date thereof; to remain with his family, except when necessarily away, or absent with the wife's consent, but in no event for an unreasonable time, considering the purposes of the journey; to furnish her and their children, from the date of the instrument, suitable clothing and support, considering their station in life; to treat his wife kindly and as a husband should treat a wife; and not to desert or abandon her or the children.
The first count of the declaration treated the bond as one with collateral conditions, and the second treated it as an unconditional bond for the payment of $1,000. Upon the demurrer, the court sustained the first count and adjudged the second to be insufficient. Pleas of marriage and duress were rejected by the court. What disposition was made of a plea of non damnificatus is not clearly disclosed by the record, but no issue seems to have been made upon it. The case went to the jury upon a general issue as to the form of which no complaint is made.
Since the first count discloses on its face the relation of husband and wife, subsisting between the plaintiff and John M. Bolyard, the demurrer was no doubt predicated upon that relation. But, if it is sufficient as to J. H. Bolyard, the surety in the bond, the demurrer was properly overruled as to that count, for the demurrer was general and not limited to John M. Bolyard. Clark v. Ohio River R. R. Co., 34 W.Va. 200, 12 S.E. 505; Wheeling v. Black, 25 W.Va. 266; Henderson v. Springer, 6 Grat. (Va.) 130. Lack of a cross-assignment of error, based upon the action of the court in sustaining the demurrer to the second count, renders inquiry as to the propriety of such action unnecessary.
The legal status of the bond, as between the husband and wife, is a threshold question in the case. Under the common law, a contract between husband and wife, in the ordinary sense of the terms, was a legal impossibility. Courts of law recognized no such thing as being possible. In equity, however, fair and reasonable contracts between them were recognized and enforced. It is unnecessary to cite authority for these elementary propositions. In some jurisdictions, the modern statutes enlarging the rights and increasing the powers of married women, respecting the ownership of property and the right of contract, are construed and interpreted as having authorized them to make legally binding contracts with their husbands. In this state, the statute has received a different construction. On more than one occasion, it has been declared that the husband and wife cannot contract with one another, and that the statute has not altered the common law in this respect. Roseberry v. Roseberry, 27 W.Va. 759; Pickens v. Kniseley, 36 W.Va. 794, 798, 15 S.E. 997; Bennett v. Bennett, 37 W.Va. 396, 399, 16 S.E. 638, 38 Am. St. Rep. 47; Bruff v. Thompson, 31 W.Va. 16, 23, 6 S.E. 352; Carey v. Burruss, 20 W.Va. 571, 576, 43 Am. Rep. 790; Stockton v. Farley, 10 W.Va. 171, 27 Am. Rep. 566. These statutes destroy the legal identity of husband and wife only for some purposes and to a limited extent. The common-law rule places the husband as well as the wife under disability as to contracts made directly between them. He could no more bind himself to her by his contract than she could bind herself to him in such manner. Nothing in the statute discloses intention to emancipate him from this disability. On the contrary, the effect of the statute is to diminish his power respecting his wife's property and enlarge hers. Hence there is clearly no basis whatever for an inference of intention either to relieve him from disability or enlarge his powers. The act as originally passed did not empower the wife to take separate property from the husband, by inheritance, gift, grant, devise or bequest. Code 1868, c. 66. It was amended so as to permit her to do so. Acts 1891, c. 109, § 2. Later, this amendment was eliminated. Acts 1893, c. 3, § 3. The legislative action thus disclosed indicates intention not to disturb the common-law rule as to contracts between husband and wife.
In the present state of the law, a married woman has full power and authority to contract with persons other than her husband and to sue in the courts of law for vindication of her contractual rights with such persons. If, therefore, the plaintiff had made a separate contract with J. H. Bolyard the father of her husband, upon sufficient consideration, she would have undoubted right to maintain an action against him, for the breach thereof, in her own name. He has joined her husband in a contract with her, as surety for the husband. Ordinarily, a principal contract is essential to the existence of a contract of suretyship. Brandt, Sur. & Guar., § 163; Bank v. Kingsley, 2 Doug. (Mich.) 379; Stull v. Davidson, 12 Bush (Ky.) 167; Evans v. Raper, 74 N.C. 639. This principle however, is not general in its operation. It is limited to those instances in which the contract is wholly prohibited by law, or has been procured by fraud. Mere personal incapacity of the principal in the contract does not relieve the surety. Burner v. Nutter, 87 S.E. 359. The disability of the husband and wife to contract with one another, though absolute in the legal forum, is purely technical. Their contracts are enforceable in equity, if just and fair. They are denied a legal status to the end and purpose that they may be always within the power of the chancellor for enforcement, annulment, or modification, as the equities of the situation require. The ban under which such contracts fall is only partial. They are not wholly bad, nor are they prohibited by positive law. They are merely unenforceable in courts of law, or by strict legal process. In the broad sense of the law, including the equity jurisprudence as well as the legal, they are valid. The partial condemnation does not rest upon anything vicious in the sense of immorality. It goes no farther than exclusion from legal cognizance, and this exclusion is effected merely to place them within the exclusive cognizance of that class of courts whose procedure and remedies are sufficiently flexible and varied to enable them to do justice under all circumstances. To put them on a par with contracts fraudulently procured and contracts prohibited by positive law, as being morally or economically vicious, would be logically indefensible. Accordingly it is generally held that a party making himself a surety for a married woman in a note that is void, for lack of power in her legally to bind herself, is bound, notwithstanding the legal invalidity thereof as to her. Smyley v. Head, 2 Rich. (S. C.) 590, 45 Am. Dec. 750; Stillwell v. Bertrand, 22 Ark. 375; Kimball v. Newell, 7 Hill (N. Y.) ...
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