Hamilton v. Hamilton

• Decision Date: 22 January 1924
• Docket Number: C. C. 219.
• Parties: HAMILTON v. HAMILTON.
• Court: West Virginia Supreme Court

121 S.E. 290

95 W.Va. 387

HAMILTON v. HAMILTON.

C. C. No. 219.

Supreme Court of Appeals of West Virginia.

January 22, 1924

Submitted January 9, 1924.

Syllabus by the Court.

A married woman may sue her husband at law upon a promissory note executed by the husband to a third person, and which the wife now holds as legatee under the last will and testament of the promisee; no right of contract between the husband and wife being involved.

Case Certified from Circuit Court, Marion County.

Proceeding by way of motion for judgment by Mary A. Hamilton against Joseph F. Hamilton. A special plea of defendant was stricken and the question certified. Affirmed.

H. H Rose, of Fairmont, for plaintiff.

Shaw & Shaw, of Fairmont, for defendant.

LITZ J.

Proceeding by way of motion for judgment, under section 6, chapter 121 Code (Barnes' 1923), the plaintiff on the 8th day of March, 1919, served the defendant with written notice that she would, on the 31st day of March, 1919, move the circuit court of Marion county for judgment against him in the sum of $319.83, upon a certain negotiable promissory note for $200 dated April 5, 1909, signed by the defendant as maker and payable to the order of Coleman Whalen, one day after date with interest from its date; said note having thereafter passed to the plaintiff as a legatee under the last will and testament of said Coleman Whalen. After the case had been tried once, the defendant on April 29, 1921, filed his special plea averring in effect that the relationship of husband and wife existed between the parties at the time of the execution of the note sued on and had ever since continued. On motion of the plaintiff this plea was stricken from the record on the ground that it constituted no defense to the action, and from that ruling of the trial court the case is certified here.

It is asserted for the defendant, in support of the plea that in this state a married woman cannot sue her husband at law, although the action be for the recovery of her separate property. At common law, because of the legal fiction that during coverture the legal existence of the wife is suspended and merged in that of the husband, neither spouse can maintain against the other an action at law. Furthermore, while laboring under this common-law disability, she cannot contract with her husband or third persons, nor ordinarily sue or be sued without the husband being joined. But our statutes have greatly enlarged and increased the rights and powers of married women respecting the ownership of property and the right of contract.

The legal status of married women, relating to suits by and against them, has also undergone radical change in this state. Section 1 of chapter 66, Code, preserves to the married woman, free from the control or debts of her husband, all separate property, real and personal, and the rents, issues, profits, and the increase thereof, heretofore acquired under the laws of this state, or of any other state or country, as her sole and separate property in all respects, as if she were a single woman. Section 2 provides that the real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor liable for his debts, and shall be and continue her sole and separate property as if she were a single woman. Section 3 empowers married women to take by inheritance or by gift, grant, devise, or bequest from any person other than her husband, and hold to her sole and separate use, free from the control and debts of her husband, and convey and devise, real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof in the same manner and with the same legal effect as if she were unmarried, except that no married woman, unless she be living separate and apart from her husband shall sell and convey real estate without her husband joining in the deed or other writing by which the same is sold or conveyed. Section 13 permits suit against a married woman, without joining her husband, in the following cases: (1) Where the action concerns her separate property; (2) where the action is between herself and her husband; and (3) where she is living separate and apart from her husband. This section further provides that in no case need she prosecute or defend by guardian or next friend. Under section 15,

"A married woman may sue or be sued in any court of law or chancery in this state, which may have jurisdiction of the subject-matter, the same in all cases as if she were a feme sole, and any judgment rendered against her in any such suit shall be a lien against the corpus of her separate real estate. And an execution may issue thereon and be collected against the separate personal property of a married woman as though she were a feme sole."

Prior to 1893 the statute regulating suits by or against married women (section 12, chapter 66, Code 1887) was as follows:

"A married woman may sue and be sued without joining her husband in the following cases: (I) Where the action concerns

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