Heacock v. Heacock

• Decision Date: 23 May 1899
• Parties: LUELLA HEACOCK v. J. J. HEACOCK, Appellant
• Court: Iowa Supreme Court

79 N.W. 353

108 Iowa 540

LUELLA HEACOCK v. J. J. HEACOCK, Appellant

Supreme Court of Iowa, Des Moines

May 23, 1899

Appeal from Plymouth District Court.--HON. JOHN F. OLIVER, Judge.

ACTION at law to recover an amount alleged to be due as interest on an instrument in writing. A demurrer to the petition was overruled, and the defendant refusing to plead further judgment was rendered in favor of the plaintiff for the amount claimed. The defendant appeals.

Reversed.

J. M Wormley and I. S. Struble for appellant.

Ira T Martin for appellee.

DEEMER J. ROBINSON, C. J., dissenting.

OPINION

DEEMER, J.

A copy of the instrument upon which this action was brought is as follows: "1,000.00. Kingsley, Io., May 20, 1893. I promise to pay Luella Heacock (my wife) one thousand dollars, value received, with interest thereon at the rate of 6 per cent. per annum, payable annually. This note becomes due at my death, and to be paid her out of the estate, aside from her lawful dowry. In case of her death before mine, this note becomes void. Should any of the interest not be paid when due, it shall bear interest at the rate of 6 per cent. per annum. It is also stipulated that, should the collection of this note be enforced by law, a reasonable amount shall be allowed as attorney's fees, and taxed with the costs in the cause. [Signed] J. J. Heacock." The plaintiff admits the payment on the instrument of twenty-five dollars as interest, and seeks to recover one hundred and sixty-seven dollars and ninety-two cents as interest due December 8, 1896, and unpaid, and interest on that sum.

The first ground of the demurrer is that the petition does not show that the plaintiff can maintain this action, for that she is the wife of the defendant, and it is not shown that the instrument sued on was given for money loaned by the plaintiff to the defendant, or for property of the plaintiff, the possession or control of which had been obtained by the defendant. While the legislature of this state has made many and very radical changes in the common law relating to husband and wife, yet it is a serious mistake to assume that the legal unity or oneness of husband and wife has been entirely obliterated by our statutes. Indeed, there is no state that has gone to such an extent. McKee v. Reynolds, 26 Iowa 582; Jones v. Crosthwaite, 17 Iowa 393. A wife cannot, in the absence of express agreement, recover money of hers spent by her husband for the use of the family, or to promote his business. Patterson v. Hill, 61 Iowa 534, 16 N.W. 599; Hanson v. Manley, 72 Iowa 48, 33 N.W. 357; Courtright v. Courtright, 53 Iowa 57, 4 N.W. 824. The husband owes his wife nothing for services performed by her. Grant v. Green, 41 Iowa 88; Van Doran v. Marden, 48 Iowa 186. The wife's time, outside of her separate business, belongs to her husband. Miller v. Dickinson County, 68 Iowa 102, 26 N.W. 31; Lyle v. Gray, 47 Iowa 153; Fleming v. Town of Shenandoah, 67 Iowa 505, 25 N.W. 752. The husband's creditors may take all that his wife accumulates outside her separate business. Hamill v. Henry, 69 Iowa 752, 28 N.W. 32. Husband and wife cannot contract with each other to secure the performance of their marital rights and duties. Miller v. Miller, 78 Iowa 177, 35 N.W. 464. The law presumes that the influence of the husband over his wife is such that she is not held criminally liable for acts done by her in his presence. State v. Kelly, 74 Iowa 589, 38 N.W. 503. And the husband is under obligations to support his wife, and is entitled to her earnings. Thill v. Pohlman, 76 Iowa 638, 41 N.W. 385; Tibbetts v. Wadden, 94 Iowa 173, 62 N.W. 693; Rafferty v. Buckman, 46 Iowa 195; Porter v. Briggs, 38 Iowa 166. In the case of Peters v. Peters, 42 Iowa 182, it is expressly held that neither the husband nor the wife can sue the other for a tort committed during coverture. This same conclusion has been reached by other courts in construing similar statutes. Libby v. Berry, 74 Me. 286; Barton v. Barton, 32 Md. 214; Freethy v. Freethy, 42 Barb. 641; Schultz v. Schultz, 89 N.Y. 644. These cases teach the following doctrines: First, that the legal fiction of the oneness of husband and wife has not been entirely effaced; and, second, that all disabilities which the common law imposes upon husband and wife by reason of the marriage status still exist, except in so far as they have been modified or changed by express statutory enactment. As sustaining these conclusions, see, also, Robertson v. Bruner, 24 Miss. 242; May v. May, 9 Neb. 16 (2 N.W. 221); Diver v. Diver, 56 Pa. 106; Bertles v. Nunan, 92 N.Y. 152. Now, at common law neither the husband nor wife could sue the other at law nor could they enter into contracts with each other. Public policy, originating in the delicate relation existing between husband and wife, forbade the wife from maintaining an action at law against her husband. Barton v. Barton, supra; Russ v. George, 45 N.H. 467; Power v. Lester, 23 N.Y. 527. Contracts between them were void because of defect of parties, and both husband and wife labored under the disability. Aultman v. Obermeyer, 6 Neb. 260; White v. Wager, 25 N.Y. 328.

Have these disabilities been removed by our statutes, and, if so, to what extent? And first as to the right to sue: The only sections giving the wife a right of action against her husband are section 2204 and 2211 of the Code of 1873, which read as follows:

"Sec. 2204. Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried."

"Sec. 2211. A wife may receive the wages of her personal labor and maintain an action therefor in her own name, and hold the same in her own right; and she may prosecute and defend all actions at law or in equity for the preservation and protection of her rights and property, as if unmarried."

In construing these sections, Judge Day, speaking for the court in the Peters Case, supra, said: Whilst it must be admitted that very radical changes have been made in the relation of husband and wife, still it seems to us that these changes do not yet reach the extent of allowing either husband or wife to sue the other for personal injury committed during coverture. * * * It is evident that section 2211 refers to and authorizes actions against parties other than the husband; for, if this section allows an action generally against the husband, it covers and embraces more than is included in section 2204, and that section is rendered useless and meaningless. Whatever right of action exists against the husband must therefore be found in section 2204. This section is limited to actions for property, or rights growing out of the same." The holding in that case has never been questioned, and it seems to us it firmly establishes the doctrine that the wife has no right of action against her husband, unless it be for the preservation or protection of her separate property. See, as further sustaining these conclusions, Chestnut v. Chestnut, 77 Ill. 346; Jenne v. Marble, 37 Mich. 319; Pittman v. Pittman, 4 Ore. 298. If she has no right to sue,--no remedy,--she has no right. Broom Legal Maxims (8th ed.), p. 191, and cases cited; Ahby v. White, 2 Ld. Raym. 953; Howe v. Wildes, 34 Me. 566; People v. Dikeman, 7 How. Pr. 130. As she has no remedy against her husband, unless it be for the infraction of some of her property rights, she cannot sue him on his personal contract.

This ought to end the case, but, as reliance is placed upon section 2213 of the Code of 1873, it is perhaps well to consider that section. It reads as follows: "Contracts may be made by a wife and liabilities incurred, and the the same enforced by or against her to the same extent and in the manner as if she were unmarried." It is said that this section authorizes any kind of contracts between husband and wife. We do not think so. Both husband and wife were under such legal disabilities at common law as that they could not contract with each other. To remove the disability of one will not validate the contract, for one of the contracting parties has no assenting mind; and it would be strange doctrine to announce that, because the disability was removed from one of the contracting parties, the contract is good although the other is without a concurring mind. The statute undoubtedly has reference to contracts with persons other than her husband; for, as said by Denio, J., in the case of White v. Wager, 25 N.Y. 328: "No doubt, there was an intention to confer upon the wife the legal capacity of a feme sole, in respect to conveyances of her property, but this does not prove that she can convey to her husband, for no such question could possibly arise in respect to a feme sole; there being no person to whom, in respect to conveyance made by her, the rule of the common law could apply. But, assimilating the case of a wife to that of an unmarried woman, the legislature merely meant to say that she should have the same power as though she were not under the disability of coverture. Taking away that disability, she would have power to make all such conveyances as were not forbidden by special provision of law; but such general statutes are never understood to overreach particular prohibitions, founded on special reasons of policy or convenience. Corporations cannot, in general, take title to lands by will. The removing of the disability of femes covert would not allow them to make a devise to a corporation not authorized to take. It is not the disability of the wife alone which would, by the common law, render void her conveyance to her husband. The...