Goff v. Hankins
| Decision Date | 08 January 1895 |
| Docket Number | 1,421 |
| Parties | GOFF v. HANKINS |
| Court | Indiana Appellate Court |
From the Blackford Circuit Court.
Judgment affirmed.
J. H C. Smith, A. L. Sharpe and J. A. Hindman, for appellant.
E. L Watson, L. Mock and A. Simmons, for appellee.
Section 5115, R. S. 1881, being section 6960, R. S. 1894, reads as follows:
"All the legal disabilities of married women to make contracts are hereby abolished, except as herein otherwise provided."
By section 5117, R. S. 1881, section 6962, R. S. 1894, it is provided that a married woman may acquire and hold real and personal property, and the same with its proceeds shall be under her control the same as though she were unmarried. "And she may, in her own name, as if she were unmarried at any time during coverture, sell, barter, exchange and convey her personal property; and she may also, in like manner, make any contracts with reference to the same; but she shall not enter into any executory contract to sell or convey or mortgage her real estate, nor shall she convey or mortgage the same, unless her husband join in such contract, conveyance or mortgage: Provided, however, That she shall be bound by an estoppel in pais like any other person."
Section 5119, R. S. 1881 (section 6954, R. S. 1894), is: "A married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner; and such contract, as to her, shall be void."
Under these statutes ability is the rule and disability to contract, on the part of a married woman, is the exception. Arnold v. Engleman, 103 Ind. 512, 3 N.E. 238; Cummings v. Martin, 128 Ind. 20, 27 N.E. 173.
It is earnestly contended by counsel for the appellant that section 5119, supra, can not and ought not to be construed as a limitation upon the power expressly conferred by section 5117, supra, "to make any contracts" with reference to her personal property. Counsel would apply the inhibition simply to her contracts with reference to her real estate. We can not regard this as a fair construction of the statute.
These sections are all parts of one act passed for the relief and protection of married women, and they are to be liberally construed to effectuate the purpose intended. Long v. Crosson, 119 Ind. 3, 21 N.E. 450.
The different sections must all be construed together, and when this is done we have no doubt that the plain intent of the legislature was to prohibit every contract of suretyship in any form whatever, whether it operated upon the real or personal property of the married woman.
In Johnson v. Jouchert, 124 Ind. 105, 24 N.E. 580, it is also said: "A married woman, by force of section 5119, is protected, as at common law, in all transactions which do not relate to or benefit her separate estate, or business, or which are not to her personal benefit."
Without the provisions of section 5119, supra, the wife could mortgage her realty, as well as her personalty, to secure a surety obligation. We can see no good reason for limiting the inhibition to real estate. There is in the section itself no such limitation.
In this case appellee recovered an organ which had been delivered by her as a pledge to secure a debt of her husband's, and an instrument was executed by the appellant and husband showing that the organ was received as security for part payment of a team of horses sold by appellant to the husband, with a right of redemption up to a certain date, and if not so redeemed, the organ become the absolute property of appellant at his option.
It is strenuously argued by counsel that because this instrument was not signed by appellee nor any personal obligation assumed by her to pay the debt, no liability of suretyship was created. The transaction was clearly (upon appellee's version at least, and this the jury accepted) a pledge of her property to secure her husband's debt. Whenever the result of the transaction is such as to impose upon the wife's property a liability to answer for the debt of another, she must...
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