Butler v. Ives
| Decision Date | 06 April 1885 |
| Parties | George F. Butler v. Amelia A. Ives[1] |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Writ of entry, dated February 21, 1883, to recover a parcel of land in Sandisfield. Trial in the Superior Court, without a jury before Rockwell, J., who found for the demandant, and reported the case for the determination of this court. The facts appear in the opinion.
Judgment for demandant.
B Palmer & H. C. Joyner, for the tenant.
J. Dewey, for the demandant.
OPINION
The demandant claims title under a mortgage made by Abigail Curtiss. The report states that the title to the demanded premises is now in the tenant, unless the demandant has a valid title.
During the coverture, the husband of the mortgagor advanced money for the benefit of her separate estate, and she, in consideration thereof, on February 17, 1871, made a note, and a mortgage of her separate estate, to one Seeley, for the benefit of her husband, the note being payable to said Seeley or bearer. Seeley assigned the mortgage to the husband, and delivered the note to him at some time during the life of the mortgagor. The husband afterwards, on May 21, 1877, and during the life of the wife, assigned the note and mortgage to the demandant, who entered to foreclose the mortgage.
The tenant contends that the transfer to the husband extinguished and discharged the note and mortgage, so that the assignment to the demandant conveyed nothing to him. Such a result is palpably unjust, and subversive of the intentions and purposes of all the parties to the transaction.
At common law the note would have been void ab initio, because a married woman had not the legal capacity to make such a contract; and the mortgage, being only as security for the note, would also have been void. Heburn v. Warner, 112 Mass. 271. So, at common law, if the note had been valid in its inception, as if, for instance, it had been given before marriage, when the husband became the legal and equitable owner of the note, it would have been extinguished, and regarded as paid. The reason for this was, that, at common law, husband and wife were regarded as one, and one of the incidents of this unity or identity was that the husband was entitled to the personal property and choses in action of the wife, and to the rents and income of her real estate, and was liable to pay her debts. If he took up such a note, as he was the party by law bound to pay it, it operated in law as a payment and extinguishment of the note.
But our statutes have made great changes as to the rights and liabilities of married women. Under them no one doubts that the note and mortgage in question were valid while in the hands of Seeley, although the entire beneficial interest in them was vested in the husband. Under the present law, the husband is not entitled to the property of the wife, and is not liable for her debts contracted before marriage, or for those contracted after marriage in relation to her separate estate, and therefore the main reason for the rule that a debt of the wife is extinguished when he becomes the owner has ceased to exist.
It is true that our statutes provide that they shall not be construed to authorize a married woman to make contracts with her husband, or to authorize suits between husband and wife. Pub. Sts. c. 147. She cannot now make a contract directly with her husband, such as a note payable to him. Such a contract is void ab initio. Roby v Phelon, 118 Mass. 541. But it does not follow that every contract made by the wife which is valid in its inception becomes invalid or extinguished because by subsequent events the husband becomes the owner of it. It has been held that, if a woman makes a mortgage to secure the debt of a third person, and subsequently marries the mortgagee, the mortgage is not extinguished or...
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