Hamilton v. Hamilton

• Citation: 89 Ill. 349,1878 WL 10036
• Parties: MARY J. HAMILTONv.SAMUEL HAMILTON.
• Decision Date: 30 June 1878
• Court: Supreme Court of Illinois

89 Ill. 349

1878 WL 10036 (Ill.)

MARY J. HAMILTON

v.SAMUEL HAMILTON.

Supreme Court of Illinois.

June Term, 1878.

WRIT OF ERROR to the Circuit Court of Franklin county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Plaintiff was the wife of defendant, and had instituted in the circuit court a suit against him for a divorce, (upon a charge of adultery) and for alimony. Pending this suit, on the 15th of August, 1876, they agreed, in writing, signed by both, (among other things,) that defendant, (the then husband) would give to plaintiff, (the then wife) a certain farm, (described); and that he would pay her, further, the sum of $500, (in a mode specified,) the farm to be conveyed by them both to John W. Williams and by Williams to plaintiff. And in consideration of the foregoing, plaintiff agreed to unite with defendant in the conveyance of all of defendant's other real estate (waiving her homestead and dower rights,) to Wm. C. Sadler; and she further agreed to dissolve an injunction (then in force against the defendant in the divorce suit); and she further agreed to dismiss her claim for alimony in that suit.

This is an action of assumpsit, by plaintiff against defendant, for a breach of that agreement. The declaration sets out this agreement, and alleges, by apt specifications, that she complied in every respect with the terms of this contract; that at the October term, 1876, she prosecuted to final decree her divorce suit, and was thereby divorced for the cause alleged, and that she made no claim for alimony; that the farm was conveyed to her as agreed, and that $150 (of the $500) was paid by him to her (in pursuance of the agreement and prior to the decree of divorce,) and that defendant, since the divorce, refused to pay the balance of the $500, after proper demand, etc.

To this declaration the circuit court sustained a demurrer, and gave judgment in bar and for costs against plaintiff, and she appeals to the Supreme Court.

Mr. F. M. YOUNGBLOOD, for the plaintiff in error.

Mr. THOMAS J. LAYMAN, for the defendant in error.

Per CURIAM:

The question chiefly discussed in this case is that of the capacity of plaintiff, at the time of the contract, to contract with her husband.

This statute of March 30, 1874, (R. S. 576,) goes much further in abolishing disabilities arising from coverture, than any former statute. By it a wife may sue and be sued as if unmarried; an attachment or judgment may be enforced against her as if she were unmarried; she may defend in her own right when sued with her husband; “contracts may be made and liabilities incurred by a wife * * * as if she were unmarried,” except contracts of partnership; she may own in her own right real and personal property obtained by gift, descent or purchase, and may convey the same as may the husband property belonging to him.

There is nothing in all this which forbids her to contract with her husband,...