Kies v. Young

• Decision Date: 30 October 1897
• Parties: KIES v. YOUNG
• Court: Arkansas Supreme Court

42 S.W. 669

64 Ark. 381

KIES v. YOUNG

Supreme Court of Arkansas

October 30, 1897

Appeal from Pulaski Circuit Court, Second Division, JOSEPH W MARTIN, Judge.

STATEMENT BY THE COURT.

The appellee, J. F. Young, brought this action against J. H. Kies and his wife, U. M. Kies, for the sum of $ 139.25.

Upon the trial in the circuit court, where the case was tried on appeal from a judgment of a justice of the peace, it was agreed that Mrs. Kies, while a widow and unmarried, kept a boarding house, and purchased supplies from, and became indebted to, the plaintiff Young. Young brought suit against her, and recovered judgment for the sum of $ 135.85. Afterwards she married the defendant J. H. Kies. At the time she married Kies she had no property except wearing apparel and has nothing more now.

Upon these facts the circuit court declared the law as follows:

"Though a debt contracted, by a married woman, while covert, on account of her separate estate or business is, by statute not binding on her then husband, and hence not upon a subsequent husband, yet a debt contracted by her while discovert, after the death of her first husband, and before marriage to the second husband, and when no legal disability exists, stands upon a different footing. In such a case, the statute having made no provision for, or indicating any intention of, releasing the last husband from the indebtedness created by marriage, the common-law liability still exists, and the husband is responsible for the debts of his wife incurred dum sola."

The court thereupon gave judgment against defendant Kies.

Judgment affirmed.

Jos. W. House, for appellant.

Our "married women's act" gives a woman complete control over her property after marriage (Sand. & H. Dig., §§ 4940-4961), and this statute is to be liberally construed. (Sand. & H. Dig., § 4960.) The husband was liable for the antenuptial debts of his wife at common law, for the reason that, by marriage, the wife was deprived of her rights of acquiring and holding property. Tyler, Infancy & Coverture, 332-33; 27 Ark. 289. The common-law rules in this latter respect being abolished by the statutes above cited, the rule falls, with the failing of its reason. 48 Ill. 49; 6 Tex. 234; 5 Tex. 301; 32 Tex. 288; 32 Kas. 410-411; 63 Pa.St. 368; 4 G. Greene (Ia.), 186; 52 Cal. 412; 60 Ark. 266; Constitution of Ark. art. 9, § 7.

Carmichael & Seawel, for appellees.

Prior to the "married women's act" in Arkansas, the husband was held to be liable for the antenuptial debts of his wife. 27 Ark. 288; 19 Ark. 430; 16 Ark. 539; 8 Ark. 241. The husband's common-law liability was not based solely on the fact that he obtained control of his wife's property by virtue of their marriage. For some of the various reasons assigned therefor, see Bl. Com., p. 443; 2 Bish. Law of Mar. Wom., § 312; Kelly, Contr. of Mar. Wom., p. 13; 10 S.W. (Ky.), 277. Many of these reasons remain today unchanged by statute. His rights as to the labor and earnings of his wife are not all swept away. Endlich, Interp. Star., 422; 47 Ark. 175; 94 U.S. 558; 5 Duer (N. Y.), 185; 2 Bish. M. W. § 313. A married woman cannot be sued alone for her debts contracted before marriage. Bishop, Law of M. W., p. 481; Sand. & H. Dig., § 5641. The statute only relieves the husband from being joined in suits against the wife for debts contracted after marriage and for her separate estate. 33 Ark. 601; 1 Pars. Contr. (8 Ed.) 393; 8 Paige, Ch. (N. Y), 39; Bish. Law of Mar. Wom. § 310. The common-law legal unity of husband and wife still exists to some extent. 30 Ark. 17; 31 Ark. 678; 56 Ark. 294; 39 Ark. 358; 103 Mass. 300-4; 2 Bish. M. W. § 423. The liability for forts of wife rests on same principle as that for contracts. 34 Ark. 401; 48 Ark. 220. The statute neither expressly nor by necessary implication changes the common-law rule as to these debts. 5 Duer, 183; 31 O. St. 546; 42 Mo. 303; 47 N.Y. 577; 103 Pa.St. 67; 19 Wis. 333; 9 Am, & Eng. Enc. Law, 822; 16 L. R. A. 530. If all the reasons for a rule are taken away, the rule must fall; but this is not so if any of the reasons remain. If the reason for the liability of the husband for antenuptial debts of the wife has ceased, so has the rule of his liability for her support. 1 Bish. M. W. 58, 887; 1 Pars. Cont. (8 Ed.), star pages 9, 350; 1 Bish. M. W. 72.

RIDDICK J. BUNN, C. J. dissenting.

OPINION

RIDDICK, J., (after stating the facts.)

The question presented in this case is whether a husband is liable for the antenuptial debts of his wife. It is conceded that the husband was, at common-law, liable for such debts (Harrison v. Trader, 27 Ark. 288), but the contention is made that the effect of our statute, which excludes the marital rights of the husband in the wife's property during coverture, and confers upon married women power to acquire and hold property, is to abrogate this rule of the common law.

It is plain that this statute does not expressly change or affect the liability of the husband, but appellants argue that the reasons upon which the rule was based have, by virtue of such statute, ceased to exist, and that therefore the rule itself should cease. It will be admitted that if a rule of law be based upon certain specific reasons, which can be enumerated, and upon no others, and these reasons are all taken away, then the rule must fall; but if some of the reasons for the law remain, the law itself remains, and the courts must enforce it until changed by the legislature. 2 Bishop, Married Women, § 65. Now it is difficult to state precisely all the reasons upon which was based the rule of law making the husband responsible for the antenuptial debts of his wife. It is probably true, as stated by the supreme court of New York, that an inquiry into the reasons of such rule "involves the consideration of all the rights, obligations, duties, liabilities and disabilities given by the common law to the marital relation. And, so far as observed, no writer has yet authentically furnished all the reasons which may have influenced the various conditions of coverture imposed by the common law." Fitzgerald v. Quann, 33 Hun 652.

At common law the husband and wife were regarded as one person; the wife's legal existence was merged in that of her husband. "Upon this principle of a union of person in husband and wife," says Blackstone, "depends almost all the legal rights, duties and disabilities that either of them acquire by marriage." 1 Blackstone, Comm. 442. Among the duties imposed by the law upon the husband was the duty to pay the debts of the wife contracted dum sola, for, says the same' learned author, "he has adopted her and her circumstances together." 1 Blackstone, Comm. 443.

But if the liability of the husband rested in any degree upon the legal unity of the husband and wife, that reason still exists to some extent; for, notwithstanding the important changes wrought by our statute concerning the powers and rights of married women, many of the rules of law resting upon this unity of the husband and wife are still enforced by the courts of this state. This court, since the passage of the statute above referred to, has held that, by reason of such unity, the husband and wife cannot contract with each other (Pillow v. Wade, 31 Ark. 678), nor become partners in business (Gilkerson-Sloss Com. Co. v. Salinger, 56 Ark. 294, 19 S.W. 747), nor sue each other in a court of law (Countz v. Markling, 30 Ark. 17). By reason of this legal unity, land in this state conveyed to the husband and wife jointly vests in them an estate by entirety, so that the survivor takes the whole, whereas, but for this theory of legal unity, they would take as tenants in common. Robinson v. Eagle, 29 Ark. 202; Kline v. Ragland, 47 Ark. 111; Branch v. Polk, 61 Ark. 388. It will be seen, by reference to these and other decisions of this court, that the common-law unity of husband and wife still exists in this state, except so far as the legislative purpose to modify and change it has been expressed by statute.

But it is contended, that the husband's liability rested upon the common-law principle, now abrogated by statute, that the personal property of the wife, the use of her real estate, the right to her labor and earnings, passed to the husband upon marriage. She was, it is said, by marriage deprived of the use and disposal of her property, and could acquire none by her industry; and it was, therefore, necessary at common law to impose upon the husband the duty of paying her debts, otherwise her creditors would be remediless.

It is true that at common law the creditor had, after marriage, no means of collecting his debt by action against the wife alone, so the common law solved the difficulty by requiring the husband to pay such debts. But the marriage of a femme sole may still place many obstructions in the way of her creditor who attempts to collect his debt by process of law. If there be issue of the marriage born alive, then, at the wife's death, the husband's title by curtesy attaches to her land as at common law, and this may result in postponing the rights of her creditors until after the termination of such life estate, as was held in the recent case of Hampton v. Cook (64 Ark. 353, 42 S.W. 535). The husband is still entitled to the benefit of her labor and services, except when "performed on her sole or separate account." Sand. & H. Dig., § 4995.

"The true construction of the statute," says the court of appeals of New York, "is that she may elect to labor on her own account, and thereby entitle herself to her earnings but, in the absence of such an election, or of circumstances showing that she intended to avail herself of the privilege and protection conferred by the statute, the husband's common-law right to her...