French v. Slack

• Decision Date: 13 November 1915
• Parties: FRENCH v. SLACK et ux.
• Court: Vermont Supreme Court

96 A. 6

89 Vt. 514

FRENCH

v. SLACK et ux.

Supreme Court of Vermont. Orange.

Nov. 13, 1915.

Exceptions from Orange County Court; Leighton P. Slack, Judge.

Action by Alberta A. French against Origin F. Slack and Thirsa H. Slack, his wife. Verdict and judgment for plaintiff, and defendants except. Exceptions overruled, judgment reversed, with costs to the wife, and remanded for a reassessment of damages against the husband.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Stanley C. Wilson, of Chelsea, for plaintiff. March M. Wilson, of Randolph, for defendants.

POWERS, J. This is an action for the breach of certain covenants in a warranty deed from the defendants to the plaintiff. The defendants severed in their pleas, Origin F. pleading the general issue with notice, and Thirsa H. the general issue and two special pleas in bar. No replications were filed. Judgment below was for the plaintiff on a verdict in his behalf.

It appeared without dispute that the defendants were husband and wife, and that the deed in question covered their home farm, title to which was in Origin F. In one of her special pleas Thirsa H. alleged that she had no title or interest in the premises conveyed, except a homestead interest, and that the sole reason and purpose of her signing the deed was to surrender her homestead right. At the close of the plaintiff's evidence, and again at the close of all the evidence, she moved for a directed verdict on the ground that the allegations of this special plea had been established. The motion was overruled and an exception allowed.

At common law, owing to her inability to make contracts and bind herself thereby, a married woman's covenant was inoperative and void. Sawyer v. Little, 4 Vt. 414; Goodenough v. Fellows, 53 Vt. 102; Wing v. Deans, 214 Mass. 546, 102 N. E. 313. P. S. 3037, has greatly enlarged her capacity to make contracts, and, as is shown by Barrows v. Dugan's Estate, 88 Vt. 441, 92 Atl. 927, upon a review of our holdings, a married woman in this state may now make contracts generally, except with her husband, and except such as relate to her property in which her husband has marital rights. When her contract affects such property—property not held to her sole and separate use—her responsibility is to be measured by the common law, rather than by the statute. Rowley v. Shepardson, 83 Vt. 167, 74 Atl. 1002, 138 Am. St. Rep. 1078.

It logically follows from these decisions that, when a married woman joins in a conveyance of her real estate not forming a part of her separate estate, she is not liable on the covenants contained in her deed. And a fortiori, when she joins in a deed of the husband's real estate, the covenants, though joint in form, are in law not hers, but his only. Agar v. Streeter, 183 Mich. 600, 150 N. W. 160, L. R. A. 1915D, 196; Sanford v. Kane, 133 Ill. 199, 24 N. E. 414, 8 L. R. A. 724, 23 Am. St. Rep. 602.

In an action on her covenant, the burden is on the plaintiff to show that the transaction was one which the law makes binding upon her. Agar v. Streeter, supra.

It is urged, however, that the motion was properly overruled because the record does not show that Mrs. Slack had only a homestead interest in the property, nor that the plaintiff knew this fact when he took his deed. The claim thus made, assuming that it covers matters of any importance in the case, is wholly unfounded. It appears that the title was in the husband, and he must be taken to be the owner, subject only to such rights as the wife may have had on account of its being their "home farm." This must have been apparent to the plaintiff; for the very deed which he accepted showed him that the property was conveyed to the husband many years ago.

The covenant of Mrs. Slack would be void at common law, and the plaintiff has no right of action against her on account thereof. Webster Springs v. Collins, 98 Fed. 933, 40 C. C. A. 33; Pyle v. Gross, 92 Md. 132, 48 Atl. 713; Humbird v. Doran, 24 Idaho, 507, 135 Pac. 66.

One of the causes of action relied upon by the plaintiff concerned an outstanding water right claimed by a Mr. Foss, who succeeded to the rights acquired by one Hackett. The plaintiff improved Foss as a witness, and he testified that he heard Hackett and Origin F. make a trade whereby the former was to enter upon the land in question, and there dig a spring and lay pipe to convey the water to Origin's...