First Nat'l Bank of Haw. v. Gaines

• Decision Date: 10 May 1905
• Citation: 16 Haw. 731
• Parties: FIRST NATIONAL BANK OF HAWAII v. J. S. GAINES, J. M. MCCHESNEY AND ALICE MCCHESNEY.
• Court: Hawaii Supreme Court

16 Haw. 731

FIRST NATIONAL BANK OF HAWAII

v.J. S. GAINES, J. M. MCCHESNEY AND ALICE MCCHESNEY.

Supreme Court of the Territory of Hawai‘i.

Argued May 3, 1905.

Decided May 10, 1905.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

An assignment of a leasehold may be made by husband to wife, being in the nature of a gift, and not a contract within the purview of the statute, section 2252, Rev. Laws precluding contracts between husband and wife. The Married Women's Act of 1888, Sec. 2251, Rev. Laws, has the effect of destroying the common law fiction of the unity of husband and wife. The failure to record the assignment does not invalidate it as against subsequent creditors.

Smith & Lewis for plaintiff.

J. W. Cathcart for defendants.

FREAR, C.J., HARTWELL, J., AND CIRCUIT JUDGE DE BOLT IN PLACE OF WILDER, J.

OPINION OF THE COURT BY HARTWELL, J.

This was an action of ejectment to recover possession of certain leasehold premises of which the plaintiff became purchaser April 11, 1904, at an execution sale on a judgment against J. M. McChesney and R. W. McChesney, surviving co-partners doing business as M. W. McChesney & Sons. J. M. McChesney having a lease of the premises for seventeen years from August 1, 1895, at an annual rental of $175 with privilege of extension for thirteen years at $200 a year, assigned the lease to his wife Alice McChesney August 20, 1901, “subject to the payment of the rents and taxes as therein provided.” The assignment was acknowledged by McChesney March 11, 1904, and recorded April 11, 1904, the writ of execution having been issued March 11, 1904, on which the sale was made to the plaintiff. The defense was that the defendant Alice McChesney was entitled to the possession of the premises, but on the plaintiff's objection that the husband could not convey directly to the wife, and that the assignment was not recorded until after levy of the execution the court declined to admit the evidence of the assignment and directed a verdict for the plaintiff. The sole question presented to this court is whether the assignment was valid in law as against subsequent creditors.

The defendants' contention is that the Act of 1888, section 2251, Revised Laws, giving a married woman power to “receive, receipt for, hold and manage property real and personal as if she were sole,” enabled the defendant Mrs. McChesney to take and receive her husband's assignment of the leasehold as a gift, and that the provision of section 2252, Revised Laws, that “a married woman may make contracts in the same manner as if she were sole except that she shall not be authorized hereby to contract with her husband” is inapplicable, the transaction in question not being a contract within the meaning of this provision.

The plaintiff's claim is thus expressed: “According to the strict rules of the old common law the wife is not permitted to take and enjoy either real or personal property independent of her husband.” By section 2251 of the Revised Laws “a married woman is free from the restraints of the common law which regarded unity of husband and wife in so far as it enabled her to hold property separate and apart from her husband, but it did not free the husband and wife from the restraints of the common law of contracting and conveying to each other. It was...