Jenne v. Marble

• Decision Date: 16 October 1877
• Citation: 37 Mich. 319
• Court: Michigan Supreme Court
• Parties: Enos R. Jenne v. Emily U. Marble

37 Mich. 319

Enos R. Jenne v. Emily U. Marble

Supreme Court of Michigan

October 16, 1877

Argued April 12, 1877

Error to Ingham. (Huntington, J.)

Assumpsit. Plaintiff brings error. Affirmed.

Judgment affirmed with costs.

M. V & R. A. Montgomery for plaintiff in error. A married woman's contracts of sale are to be treated under Michigan statutes as if made by a feme sole: Durfee v McClurg 6 Mich. 223; she may give property to her husband (Penniman v. Perce 6 Mich. 525) or deed to him, and he may bargain with her for her property: Stiles v. Stiles 14 Mich. 75. The husband may deed to his wife, and the wife may acquire any amount of property directly from her husband and hold it as her sole property: Tillman v. Shackleton 15 Mich. 447. A wife may carry on business as if she were unmarried (Rankin v. West 25 Mich. 196) and may make herself liable for purchases on credit. Campbell v. White 22 Mich. 178.

Dart & Shields for defendant in error, as to the common law disability of married persons to contract with each other, cited Tyler on Infancy and Coverture, 320, and Marshall v. Rutton 8 Term 545. The Married Woman's Act of 1855 did not give wives power to make contracts generally, but only as to their own property (West v. Laraway 28 Mich. 465), and it does not remove the husband's disability, White v. Wagar 25 N.Y. 333; Snyder v. People 26 Mich. 108; Lord v. Parker 3 Allen 129; Edwards v. Stevens Id. 315; Hoker v. Boggs 63 Ill. 161. It is held in other states that under similar statutes the husband and wife have no more right to contract with each other than at common law. Chapman v. Kellogg 102 Mass. 246; Ingham v. White 4 Allen 412; Smith v. Gorman 41 Me. 405; Pike v. Baker 53 Ill. 163; Longendyke v. Longendyke 44 Barb. 366.

OPINION

Campbell, J.

This is an action at law by the assignee of a husband against his wife on personal covenants for the payment of rent on a lease from the husband to the wife, and for the value of certain farm live stock claimed to have been sold to her.

The lease, dated July 10, 1874, leased two farms--one on shares, and one, which included a legal homestead and some additional land, for $ 260 a year and taxes. The lease, which was in the ordinary form used for farming leases, contained personal covenants, and clauses of eviction on default.

The court below held that the transaction was not such as to create a valid right of action for the husband against the wife, as not warranted by the statutes.

Under our statutes, a wife has no power to contract except in regard to her separate property. The present contract if valid, is made so because the leasehold interest for which she bargained could be so regarded, and also the personal property which it is claimed she purchased.

The case before us is without any clear precedent, and must depend upon whether it is covered by principles which have been determined.

It has been held that a contract for the purchase of property may be lawfully made by a married woman, the procurement of property which she is to own being equivalent to the creation of a separate interest. Tillman v. Shackleton 15 Mich. 447; Campbell v. White 22 Mich. 178; Powers v. Russell 26 Mich. 179; Rankin v. West 25 Mich. 195.

The Constitution and statutes are clear against her right to make a mere personal obligation unconnected with property, and not charging it; so that she cannot become personally bound jointly with her husband, nor as a surety, by mere personal promise. De Vries v. Conklin 22 Mich. 255; West v. Laraway 28 Mich. 464; Emery v. Lord 26 Mich. 431.

She may receive a gift of land directly from her husband as the statutes now stand, Burdeno v. Amperse 14 Mich. 91; but she could not do so until the statute of 1855 gave her enlarged powers of contracting. Ransom v. Ransom 30 Mich. 328. She may also make gifts and transfers to her husband. Penniman v. Perce 9 Mich. 509; Durfee v. McClurg 6 Mich. 223.

But the law has not disregarded the fact that marital influence places married persons in different relations from others, and prevents their dealings from being governed by the same rules which usually require others to abide by bargains not tainted with distinct evidences of fraud and misconduct. Where a husband gets the advantage, it requires no great positive evidence to establish the invalidity of his bargain. Witbeck v. Witbeck 25 Mich. 439; Wales v. Newbould 9 Mich. 45; Stiles v. Stiles 14 Mich. 72.

It is not the purpose of the law to create any rule which will tend to destroy the value and confidence of the marital relation. Snyder v. People 26 Mich. 106. The statutes have made it impossible for married persons to deal on the same footing with others, by preventing either from testifying against the other without mutual consent, or from divulging their mutual conversations not made in public. It is impossible, therefore, for either to explain any transaction and its circumstances, as it might be done among strangers.

Inasmuch as the wife's power of contracting is special and not general, we can only get light on it from the doctrines which have been enforced. At common law there were mutual disabilities--husbands not being able to act any more than their wives, in mutual contracts. The man as well as the woman was under disability. The same rule applied in equity, except in regard to separate estates, and to some extent as to those. It is important to understand the peculiar elements of the agreement here sued upon, in order to know the bearings of the rules which have been considered in other cases.

In the first place the agreement is one intended to be enforced by an ordinary action at common law and not in equity, and such an action is brought here.

In the next place it is executory entirely on the part of the wife, involving no present transfer or charge of her property, or any of it.

In the third place it requires her to pay rent, incapable of being apportioned, upon the farm on which the family at the time resided, and where she was entitled to live and be supported; and includes within that farm a legal homestead over which her husband or his creditors could under no circumstances exercise dominion which would interfere with her right of possession, and it confers a right of eviction for any default in payment of rent.

In the fourth place it either contemplates a separation which no court of law would enforce, or else it compels her to pay rent for property jointly occupied with her husband as a home, in which he was legally bound to maintain her.

And lastly, as regards the personal property, it consisted of animals used on the homestead, most of which were exempt from execution and incapable of being disposed of by the husband without the wife's consent, and liable if so interfered with to be replevied by her, and none of which had been so distinguished as to take them out of the exemption.

The act of 1855 before referred to, does not, as already suggested, abrogate all of the common law or of the statutes restraining married women from contracting, and it does not profess to change the powers of husband and wife to deal with each other, except so far as such a change is implied. So far as it fairly extends it does so operate, in some important particulars as held by this Court heretofore.

But we have not held, thus far, that husband and wife may contract with each other generally, nor has it been heretofore decided that they could now make contracts enforceable at law, which could not have been enforced in equity formerly concerning a wife's separate estate.

In equity a wife's transfer of her separate property or its income to her husband might be valid, and would, if not objectionable, be sanctioned by a court of equity; and it was usually sanctioned if made for a valuable consideration, or if proper under the circumstances. This doctrine somewhat reluctantly recognized by Lord Thurlow in Pybus v. Smith 1 Ves. Jr. 189, is the ruling English doctrine, and was followed in Methodist Ep. Church v. Jaques 3 Johns. Ch. 77. In the Court of Errors 17 Johns. 548, the doctrines laid down indicated that the power to deal with separate property under settlement was presumptively absolute, while the chancellor, whose opinion has been more approved in the United States, regarded the settlement as furnishing the measure of authority, and not the limitation. Upon the general doctrine see cases collected in notes to Pybus v. Smith 1 Hov. Supplement 67; 2 Kent's Com. 162, et seq., and notes; 1 Leading Cases in Equity, 394, and notes, English and American, to Hulme v. Tenant. These distinctions are not important under our statutes which give all the power that would have been possible under any settlement.

All of the cases, however, rest upon the doctrine that the act of the wife is the execution of a power of appointment, and not an ordinary personal contract. It was never held that under any such dealings an obligation could be enforced beyond the separate estate referred to; and the broad statements that the wife could contract as if sole concerning her separate estate were uniformly and invariably understood in that way and in all cases the court exercised the power of considering the propriety of the arrangement when made with the husband, which it could not have done if there had been any power of contracting in the general and unqualified sense. And we have found nothing authorizing the inference that a husband could sue a wife at law or in equity to enforce a purely executory contract. The case of Livingston v. Livingston , 2 Johns Ch. 537, comes nearer to it, apparently, than the other cases, but it sustains no such doctrine, although the language alone might seem to warrant it. There, in pursuance of a mutual ...