Lang v. Lang.

Citation45 A.2d 822
PartiesLANG v. LANG.
Decision Date13 February 1946
CourtNew Jersey Circuit Court

OPINION TEXT STARTS HERE

Action by Helen Lang against Edward A. Lang to recover half of the proceeds of land sold by the parties as tenants by the entireties, the check for which defendant allegedly fraudulently induced plaintiff to indorse and which defendant allegedly converted to his own use. On defendant's motion to strike the complaint as insufficient in law.

Motion granted.

Syllabus by the Court.

1. A wife has no right of action at law sounding in contract against her husband. Any agreement between then is null and void and cannot be enforced at law.

2. A wife has no right of action at law sounding in tort against her husband.

3. A divorce, with the consequent change in status of the parties, does not operate to vivify a transaction between a husband and wife made during coverture, and thus enable the ex-wife to sue the exhusband at law for damages arising out of the breach of a so-called agreement or transaction, in the absence of a statute granting such right.

4. A divorce does not create a cause of action at law sounding in tort in favor of an ex-wife against the ex-husband where none existed during coverture.

Samuel L. Minsky, of Westwood, for plaintiff.

Clyde Christie, of Bergenfield (Ellis M. Kopp, of Bergenfield, of counsel), for defendant.

LEYDEN, Judge.

The motion is to strike the complaint as insufficient in law.

The complaint alleges, substantially, that in July 1945, the plaintiff and defendant sold premises owned by them as tenants by the entirety for the sum of $5,000; that the defendant fraudulently induced the plaintiff to endorse the check given in payment under a promise to pay her the sum of $2,500 of the proceeds: that the defendant failed to pay her said sum and in fact converted it to his own use. She seeks as damages $2,500 with interest from July 10, 1945.

It was admitted on the argument that the parties were divorced from the bonds of matrimony by decree on December 17, 1945.

The plaintiff has no standing in a court of law. Whether the complaint sounds in contract or in tort is of no great moment. A wife has no right of action at law sounding in contract against her husband. Any agreement between them is at law null and void and cannot be enforced. National Bank of Rahway v. Brewster, 49 N.J.L. 231, 12 A. 769. So, too, a wife has no right of action at law sounding in tort against her husband. This well-settled rule was recognized in 1939 by the present Chief Justice in Hudson v. Gas Consumers' Association, 123 N.J.L. 252, 8 A.2d 337, and he there pointed out that no statute has been enacted in this state that disturbs the rule. No change has since been made. R.S. 37:2-5, N.J.S.A.

The plaintiff contends, however, that the divorce removes the disability and the action is now maintainable. There is no merit in this argument. A limited divorce would not enable the wife to sue her husband. Drum v. Drum, 69 N.J.L. 557, 55 A. 86. If the husband were dead the wife could not, at law, sue the representative of the husband for money received by him on her behalf during the marriage. Rusling v. Rusling's...

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