Emerson v. Clayton
| Decision Date | 30 November 1863 |
| Parties | EMILY H. EMERSONv.JAMES M. CLAYTON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ERROR to Circuit Court of Clinton County.
The pleadings in question in this case are sufficiently stated by the court.
Ben. Bond, for plaintiff in error.
Buxton & White, for defendant in error.
On the twenty-first day of February, 1861, an act was passed by the General Assembly of this state, entitled “An act to protect married women in their separate property,” which provides “That all the property, both real and personal, belonging to any married woman, as her sole and separate property, or which any woman hereafter married owns at the time of her marriage, or which any married woman, during coverture, acquires, in good faith, from any person, other than her husband, by descent, devise, or otherwise, together with all the rents, issues, increase and profits thereof, shall, notwithstanding her marriage, be and remain, during coverture, her sole and separate property, under her sole control, and be held, owned, possessed and enjoyed by her the same as though she was sole and unmarried; and shall not be subject to the disposal, control or interference of her husband, and shall be exempt from execution or attachment for the debts of her husband.” Sess. Laws 1861, p. 143. 1
At the March term, 1863, of the Clinton circuit court, the plaintiff in error filed her plaint in that court in replevin for certain chattels, against the defendant in error, claiming the chattels as her own property.
To this plaint the defendant pleaded in abatement the coverture of the plaintiff, at the time of the commencement of the suit. To this plea, the plaintiff replied that the property sued for was, during her coverture, acquired in good faith from persons other than her husband, with her own money and in her own right, and, as such, remains her sole and separate property and under her sole control, in virtue of the act of February 21, 1861.
To this replication the defendant demurred, and the court sustained the demurrer.
The questions presented by these pleadings are important, and of the first impression in this court, and we have fully considered them.
Before the enactment of this law, there can be no doubt a feme covert could not sue alone for her own property, or institute any suit in her own name for the recovery of any of her rights. Indeed, she had no rights of personal property; all belonged by the marriage to her husband, which he might have reduced into his possession, and all was liable to become so subject.
The common law did not recognize the condition of a sole trader in a feme covert; nor did it contemplate a case where a wife might hold property separate and apart from her husband. By it, the personal estate of the wife vested in the husband, and gave him absolute dominion over it. In the progress of civilization, an artificial state of socity has grown up incompatible, to some extent, with that state of simplicity from which many rules of the common law have been derived, and affecting, in a serious degree, the artificial relations of society, and among them, that of husband and wife. In these days of excitement and speculation, by which fortunes are wrecked in a moment, and the innocent made to suffer from no misconduct of their own, it has been thought wise and expedient by the legislature of this and of other states, to protect the property of married women, not only from such catastrophes, but to remove it entirely from the control of her husband, and making her, as it regards such property, to all intents and purposes, a single woman.
Such a change in the relative rights and powers of husband and wife must, of necessity, give a different operation to the rules of law by which they are governed. The right being vested in the wife by the statute, it must, if the act is to be enforced, remain intact until she consents to dispose of the property, for this right includes full dominion over it. Her rights then are the only rights affected, and on the well established principles of the law, she alone must bring suit for any invasion of them. By this...
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Bauserman v. Blunt
...Kibbe v. Ditto, which arose in Illinois, the course of decision in the highest court of the state was shown to be as follows: In Emerson v. Clayton, 32 Ill. 493, in which the statute of limitations was not in question, the decision was that a married woman might maintain replevin for her ch......
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Brandt v. Keller
...without joining her husband, for recovery of the property, or for an unlawful interference with it, even against her husband. Emerson v. Clayton, 32 Ill. 493. However, a married woman could not, under this statute, maintain a writ of scire facias against her husband to compel the payment of......
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Ruhe v. Buck
...The wife is given the same ownership, possession and enjoyment of her property as she would have were she sole and unmarried. Emerson v. Clayton, 32 Ill. 493; Wankirk v. Skillman, 34 N. J. 114; Blair v. Railroad, 89 Mo. 391; Bedsworth v. Bowman, 104 Mo. 44. (5) The indebtedness being for ci......
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Safeco Ins. Co. v. Seck
...woman, by removing such property from the control of her husband and making her a single woman with regard to such property. (Emerson v. Clayton (1863), 32 Ill. 493.) The Emerson court went on to state that the commencement and prosecution of suits for the recovery of property could be brou......