Kocher v. Cornell
| Decision Date | 23 November 1899 |
| Citation | 80 N.W. 911,59 Neb. 315 |
| Parties | KOCHER v. CORNELL. |
| Court | Nebraska Supreme Court |
1. At common law a feme covert was incapable of contracting a personal obligation.
2. In equity, prior to the enactment of the married woman's acts, the separate property of a feme covert was liable for the satisfaction of her engagements made with reference to it.
3. By the enactment of chapter 53, Comp. St. 1899, married women were given, as a legal right, the power to bind their separate property, which, in equity, they already possessed.
4. A married woman can bind her separate property by contract to the same extent only that she could formerly bind it in equity.
5. The contract of a married woman can only be enforced against the separate estate which she possessed at the date of the contract.
6. A mere hope of succession to an estate is not property.
7. Authority to contract with reference to and upon the faith and credit of the separate estate of a married woman does not include an inheritance acquired after the making of a contract by her.
8. And in such case it is immaterial what the intention of the parties was at the time of the execution of the contract.
Error to district court, Douglas county; Scott, Judge.
Action by Samuel R. Kocher against Isabel Cornell. Judgment for defendant, and plaintiff brings error. Affirmed.Warren Switzler, for plaintiff in error.
Geo. W. Cooper, for defendant in error.
This action was brought by Samuel R. Kocher against Isabel Cornell and her husband to recover a money judgment. The question propounded by the record is this: Is the property which a married woman acquires by inheritance, after the execution by her of a contract of suretyship binding her separate estate in general terms, liable for the satisfaction of such contract? According to the doctrine of the common law, a feme covert was incapable of contracting a personal obligation. Her ownership of property was not even recognized. In equity, however, a different rule prevailed. Although she could not, according to the equity doctrine, create a personal liability against herself, her separate estate was liable for the satisfaction of engagements made with reference to it. Her contract was regarded as binding, not upon her, but upon her estate. The property, as was said in Bank v. Lempriere, L. R. 4 P. C. 597, was considered the real debtor. Our statute has greatly enlarged the capacity of a married woman to contract, but it has not entirely removed her ancient disabilities. The authority given her by section 2, c. 53, Comp. St. 1899, is authority to contract with reference to her separate estate. Its practical effect, since imprisonment for debt has been abolished, is to give legal recognition to the previously existing equitable power. In other words, the legislative design, it seems to us, was to give to married women, as a legal right, the power over their property which in equity they already possessed. If we are right in regard to this, a married woman can bind her separate property now by contracts with reference to it only to the same extent that she could formerly bind it in equity. Whether she possessed power independent of statute to bind by contract property subsequently acquired has been before the English courts in several cases. In Pike v. Fitzgibbon, 17 Ch. Div. 454, Brett, L. J., discussing the question, said: “The decisions appear to me to come to this: That certain promises (I use the word ‘promises' in order to show that, in my opinion, they are not contracts) made by a married woman, and acted upon by the persons to whom they are made on the faith of the fact known to them of her being possessed at the time of a separate estate, will be enforced against such separate estate as she was possessed of at that time, or so much of it as remains at the time of judgment recovered.” In the same case, James, L. J., after observing that...
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