Lindsay v. Archibald

• Decision Date: 03 February 1896
• Parties: CLARK LINDSAY, Respondent, v. THOS. ARCHIBALD, Administrator, Appellant.
• Court: Kansas Court of Appeals

65 Mo. App. 117

CLARK LINDSAY, Respondent, v. THOS. ARCHIBALD, Administrator, Appellant.

Kansas City Court of Appeals

OCTOBER TERM, 1895

February 3, 1896

1. Husband and Wife: CONTRACTING: STATUTE. At common law husband and wife could not contract with one another as they were regarded as one person and each under like disability; and the married woman's act does not dissolve the unity recognized by common law.

2. —: SUING AT COMMON LAW: STATUTE. A husband can not at common law sue his wife on her contract; and the married woman's act does not remove this disability.

3. Married Women: SURVIVAL OF ACTION: HUSBAND'S JURISDICTION. A third person, much less her husband, contracting with a married woman has no personal action against her which will survive against her representative; and the circuit court alone, and not the probate court, must in equity adjudicate such contracts.

Appeal from the Carroll Circuit Court.—HON. W. W. RUCKER, Judge.

REVERSED.

Pattison & Sebree for appellant.

(1) The probate court has no equity jurisdiction (Butler v.Lawson, 72 Mo. 227), nor of a married woman's estate. Boston v. Murry, 94 Mo. 181, and eases cited. Her liability is in equity, and that liability is not changed to one at law by Revised Statutes, 1889. See Van Rheeden v. Bush, 44 Mo. App. 284, 285, and cases cited. (2) But this court has held, that even under the married woman's act of 1889, the husband and wife can not contract with each other at law so as to authorize legal proceedings against each other. McCorkle v. Goldsmith, 60 Mo. App. 478. If this be the law plaintiff could not sue his wife Margaret Lindsay at law on any of the items of his account here in suit. Therefore, her death could not, and did not, change his remedy on said account as against her administrator. 44 Mo. App. 284.

No brief for respondent.

SMITH, P. J.—Plaintiff and the deceased, Margaret Lindsay, were husband and wife. The plaintiff presented to the probate court an account against the estate of his deceased wife for allowance, and among other items of the account was this: "October 25, 1890, to cash paid Mrs. Lindsay, $313."

There was a trial of the cause in the circuit court, where there was adduced some evidence tending to show that the deceased, who was authorized to sign the plaintiff's name to checks drawn against his bank account, had drawn a check for $313 against plaintiff's account and had received the money thereon and made a loan of it, taking the note and deed of trust given to secure the same, in her own name. It does not appear how it was that the deceased came to draw the plaintiff's money out of the bank on the check. Whether the latter loaned the amount to the former, or whether the former's act was a wrongful conversion of the plaintiff's fund so in bank, we are not advised by any distinct evidence.

It does, however, appear that the plaintiff and deceased each owned property, which they managed separately, and each kept a separate bank account. The plaintiff and the deceased being husband and wife, at the time the deceased drew the plaintiff's money out of the bank on the check, the question is whether the plaintiff can recover the amount of money so obtained from him by deceased in an action on a simple account against her administrator. Or, to state the question in another way, can the plaintiff sue the representative of his deceased wife on a contract, expressed or implied, that was entered into by them during the existence of the marital relation?

At common law, husband and wife could not contract with each other, for the reason that they were regarded as one person. The disability rested alike on both. A contract which a court of law will recognize and enforce must be one entered into by two persons, who are sui juris, and are capable of contracting with each other. Nor is the unity of husband and wife, as recognized by the common law, abrogated by the provisions of section 6864, Revised Statutes. In McCorkle v. Goldsmith, 60 Mo. App. 475, it was declared that the present statute of this state, providing that a married woman shall be deemed a femme sole, so far as to enable her to contract and be contracted with and sue and be sued, does not render her contracts with her husband valid and enforcible by an action at law.

It is stated by the learned judge who wrote the opinion in the ease, that "this...