Mathewson v. Mathewson

• Decision Date: 17 April 1906
• Citation: 63 A. 285,79 Conn. 23
• Parties: MATHEWSON v. MATHEWSON.
• Court: Connecticut Supreme Court

63 A. 285

79 Conn. 23

MATHEWSON

v. MATHEWSON.

Supreme Court of Errors of Connecticut.

April 17, 1906.

Appeal from Superior Court, Hartford County; Ralph Wheeler, Judge.

Action by Josephine C. Mathewson against Albert H. Mathewson on a note. Defendant pleaded in abatement a lawful marriage between plaintiff and himself, to which plea the court overruled a demurrer, whereupon plaintiff pleaded that they were married subsequent to April 20, 1877, and, a demurrer having been sustained to such answer, a judgment was rendered dismissing the complaint, and plaintiff appeals. Reversed.

Joseph P. Tuttle, for appellant. Charles E. Perkins, for appellee.

HAMERSLEY, J. The plaintiff alleges that the defendant, for a valuable consideration, promised to pay her upon her demand a certain sum of money. The defendant, by his demurrer to the plaintiff's answer to the defendant's plea in abatement, in effect admits, for the purpose of determining the question of law in issue, that he did promise as alleged in the complaint, and claims that the plaintiff cannot maintain this action against him for the enforcement of that promise. It goes without saying that, if the parties had the right to make this contract, the plaintiff can sue the defendant for its breach, unless such suit is clearly forbidden by some positive statute. "Wherever there is a valuable right and injury to it with consequent damage, the obligation is upon the law to devise and enforce such form and mode of redress as will make the most complete reparation." Foot v. Card, 58 Conn. 1, 9, 18 Atl. 1027, 6 L. R. A. 829, 18 Am. St. Rep. 258. The right to contract involves the right to sue for breach of contract, and, when the law creates a new right to contract, the mere creation of the right includes an appropriate remedy by suit for its violation. The defendant's claim, therefore, is manifestly wrong, unless he can maintain the proposition upon which he founds it, namely, the parties had no power to make the contract alleged. It is not claimed that any disability attaches to the person of either of the parties. Each is of age and of sound mind. Each is capable of acquiring, owning, and managing property. Each is capable of making lawful contracts with all persons and with each other, unless there is some law which prohibits any contract, or at least the contract alleged in the complaint, between this plaintiff and defendant. It is admitted that the parties intermarried since April 20, 1877, and the defendant contends that a law prohibiting any contract between the plaintiff and defendant is to be found in the law (including the married woman's act of April 20, 1877) defining the civil status of husband and wife. For the purpose of avoiding confusion, we will first consider our law as it affects the status of married persons, without reference to the exceptions to the rule which have obtained in courts of equity in respect to those wives who have a separate estate.

The relation of husband and wife, although necessarily regulated by positive law, is not, like the relation of guardian and ward, created by that law. Like the relation of parent and child, it is the offspring of the law of nature, and these two relations constitute the family. The family and the obligations and privileges pertaining to it reach back of all state regulations. Payne's Appeal, 65 Conn. 402, 32 Atl. 948, 33 L. R. A. 418, 48 Am. St. Rep. 215. The essential character of the relation of husband and wife, as determined by the law of nature and the correlative rights and duties pertaining to it, may be developed, perverted, or confused, but cannot be destroyed, by the positive law which defines their legal status. The prevalent conception of the true nature of this relation may be affected by, and may affect, the changing conditions of society, and may be affected by, and may affect, legislation defining the legal status. While legislation is ordinarily in accord with the notion of the true relation presumed to prevail at the time, it does not purport to create that relation. The rights and duties growing out of the natural relation are of a kind that must vary with changing circumstances, and of a nature in the main impracticable of enforcement through legislation. In defining the legal status of married persons, the law determines the change in the civil rights of each wrought by the fact of marriage. The legal status thus established necessarily involves certain incidental rights which may or may not be expressed, and which may be established or altered by law without necessarily altering the status resulting from marriage. The primary and controlling change in legal status wrought by force of the marriage relates to the freedom of the person, but mainly to the capacity of owning property, and the incidents of the latter are the power of making contracts and of suing and being sued. In most English speaking communities, by the law as first established, the wife by force of the marriage lost her legal identity and the capacity of owning property, and as incident to this she lost the power of making contracts and of suing and being sued. But, by the law as now generally established, she does not by force of the marriage lose her legal identity, nor the capacity of owning property, and does not lose the civil rights incident to this capacity. This change in status has been accomplished in different ways and more or less gradually. In Connecticut, perhaps more fully than elsewhere, it has been accomplished by a single radical act of legislation, directly reversing the former primary and controlling change in legal status, affected by force of the marriage, and such radical change more clearly involves a consequent change in the civil rights purely incidental to the status. This consequent effect upon incidental rights plainly comes within the rule that, where the reason of the law fails, the law ceases to operate. Foot v. Card, 58 Conn. 1, 18 Atl. 1027, 6 L R. A. 829, 18 Am. St. Rep. 258; Hart v. Knapp, 76 Conn. 135, 139, 55 Atl. 1021, 100 Am. St. Rep. 989.

By our first legislation it was enacted that justice should be administered according to the laws of this jurisdiction, "and for want thereof according to the rule of the Word of God." 1 Col. Rec. pp. 21, 509; Revision 1672, Preface; Fitch v. Brainerd, 2 Day, 163, 190, 193, 194. By this law, first enacted in 1637-38, the wife's legal identity by force of the marriage became merged in that of her husband, and her legal capacity to own or acquire property, real as well as personal, was lost. By force of the marriage her personal freedom was subjected to the will or control of the husband. Until the reign of Charles II, the right of a husband to correct his wife was recognized (1 Bl. Comm. 444), and until comparatively recent times the right of the husband to restrain the person of his wife by confinement for the purpose of securing her obedience was recognized. The law which attached such subjection to the legal status of a married woman has been abolished, but not by direct legislation. It has disappeared under the continuous pressure of judicial interpretation or indirect legislation. The law, however, which attached to the status of a married woman an incapacity to own property, with the consequent inability to make contracts and to sue or be sued, remained unchanged in theory until 1877. In 1072 an act secured to the wife, who survived her husband, the right to a life estate in one-third of the land of which he stood possessed in his own right at the time of his death, a right analagous to, but distinctly different from, the English law of dower. See Revision 1750, p. 44. In 1723 the law of status by which a husband acquired upon marriage an absolute right to his wife's lands, as well as to her personal property, was altered so as to correspond more closely to the English common law. The wife's property in land was suspended during coverture and a usufructuary estate only vested in the husband. In analogy to the English process of conveying land by a fine, a wife was authorized by a deed in which her husband joined, executed in the manner prescribed, to make valid conveyance of her land, and such particular conveyance was the only act in the nature of a contract within her capacity. 6 Col. Rec. p. 425. In 1809 an act gave to married women the right to dispose of their estates, real and personal, by will, in the same manner as other persons. Revision 1821, p. 199. In 1849 it was enacted that personal property, accruing after the passage of the act, to a husband in right of his wife, should be held by him in analogy to his estate in her land; the title to such property vested in him as trustee, but during his life he owned the proceeds and income absolutely; upon his death, as in the case of land, an absolute estate vested in the wife or those legally entitled to succeed. Certain provisions for protecting such personal property from waste while in his possession necessarily enlarged in some particulars the legal capacity of the wife. As originally passed the act only applied to property accruing to a man in right of his wife by virtue of bequest or distribution to her. In 1856 the provisions were extended to property derived from patents, copyrights, etc. In 1857 its provisions were extended to property accruing by any gift to a wife except from her husband, and in 1866 the provisions were extended to all property accruing in any way to a married woman subsequent to 1849, and to all property belonging at the time of marriage to any woman married since 1849. Revision 1866, p. 303, tit. 13, c. 2. The legislation above mentioned includes our laws defining the legal status of married persons from 1637-38 to 1877, unless, possibly, an act passed in 1865 by which a husband was released from liability for his wife's antenuptial debts, and for such debts the wife was made liable to be sued as a feme sole. The original law, declaring that...