Nicholson v. Wilborn

• Decision Date: 31 July 1853
• Docket Number: No. 69.,69.
• Citation: 13 Ga. 467
• Parties: Nicholson and Wife, plaintiffs in error. vs. Wilborn and McWhorter, defendants in error.
• Court: Georgia Supreme Court

13 Ga. 467

Nicholson and Wife, plaintiffs in error. vs. Wilborn and McWhorter, defendants in error.

No. 69.

Supreme Court of the State of Georgia

JULY term, 1853.

Complaint, in Stewart Superior Court. Tried before Judge Iverson, April Term, 1853.

Mary A. Nelms, before she intermarried with Duncan L. Nicholson, contracted an account with Wilborn & McWhorter, merchants in the Town of Lumpkin, Stewart County. Af-ter her marriage, Wilborn & McWhorter brought their action against Duncan L. Nicholson and his wife, for the amount of the account. To this action the defendants filed the plea of infancy—alleging, that at the time the account was made and at the time the suit was brought, Mrs. Nicholson was an infant.

On the trial, counsel for defendant moved to dismiss the case, because one of the defendants was an infant. The Court overruled the motion, and permitted the plaintiffs to take an order appointing a guardian ad litem, for Mrs. Nicholson. To which decision and ruling of the Court, counsel for defendants excepted.

The Court charged the Jury, if the guardian furnished his ward with an allowance of money, sufficient to supply herself •with necessaries suitable to her age and condition in life, still, if it were not made to appear that the money was expended in purchasing such necessaries, the plaintiffs were entitled to recover if their demand was for necessaries; and that it was incumbent on the defendants to show by proof, that the money was applied in procuring such necessaries by the minor.

That, if it were proven that the minor had supplied herself with necessaries from other stores, still, if those obtained from the plaintiffs were bought about the same time, or contemporaneously, that the plaintiffs were entitled to recover the amount of their account.

Counsel for defendant requested the Court to charge the Jury, that if they believed from the evidence that the credit was given to the guardian, and not to the ward, the plaintiffs were not entitled to recover from the ward; but the Court charged that the ward was liable and might be sued, unless it appeared that the contract was expressly made with the guardian—and defendants also requested the Court to charge that to entitle the plaintiffs to recover, they must show to the Jury what particular articles of necessity the guardian did furnish the ward in the year 1848, and that the same were not sufficient.

Which charge the Court refused to give, and to these charges and refusals to charge, counsel for defendants excepted.

Tucker, for plaintiffs in error.

J. M. Clark, for defendants in error.

By the Court.—Nisbet, J. delivering the opinion.

Upon marriage, the husband is entitled to the estate of the wife in possession, and to reduce into possession her choses in action, and thus acquire property in them also. Without adverting to any limitations to these rules of law, in Courts of Chancery, it is sufficient for this case to state them thus broadly. As a consequence, he becomes liable for the debts of the wife contracted dum sola. It is necessary for the creditor to join the wife with the husband in a suit for their collection. Judgment being obtained against both, if the husband dies, his estate is bound. But if she dies before judgment, his liability ceases; so, if he dies before judgment his estate is not chargeable. To these last propositions also there are exceptions in certain contingencies in Chancery, to which it is not now important to refer. The joinder of the wife. is necessary, because, upon the death of the husband before judgment, the action does not abate, but survives against her. She being a party, must be served, and being of age, may appear by attorney. Now, this suit was brought to charge the husband with a debt of his wife, contracted before marriage, and whilst she was an infant, for necessaries. An infant is liable for necessaries—that is the rule. And the husband is liable, if by the law regulating the matter, she was liable as an infant. He is entitled clearly to the defences which his wife would be entitled to make, if sole. That is to say, he may plead her infancy when the debt was contracted, and that the claim was not for necessaries suitable to her condition and" degree—that she was furnished by her guardian, &c., &c Farther, in this case, the wife was a minor when the suit was instituted.

Does that fact vary his rights and obligations? If he is an adult, it does not. The wardship ceases upon the marriage of a female infant with an adult husband. The marriage is valid, and the marital rights follow. The rights of the guardian cease, both as it respects her person and estate. Her husband has a right to her person and to her estate. If an infant female marry an infant, it seems that the guardianship of her person ceases, and the better opinion, says Judge Reese is, "that her estate is, by marriage, transferred to the minor, for his marriage is as effectual as the marriage of an adult, and all the same consequences follow." If a male infant marry, the opinion seems to be, that the guardianship of his person ceases, but as to his estate, the guardianship continues. And if he marry an infant, as her property has become his, his guardian's power extends to that also. Ours is the case of a female infant marrying an adult husband. In such a case, it is settled that her wardship ceases, and the husband acquires the same rights, and incurs the same liabilities, as he would acquire and incur were she not an infant. Reese's Domestic Relations, 338. Kettletas vs. Gardner, 1 Paige R. 488. 4 Johns. Chancery R. 378. 1 Vesey, 160. 3 Atk. 625. 1 Tuckers Com., top page 138.

What I wish to deduce from these propositions is, that the husband, in this case, is liable for the contracts of his wife, dum sola, just to the same extent that he would be if she were not an infant. It was necessary to make her a party, as in other like cases, because the action, upon the death of the husband before final judgment, would survive against her. The fact that she is an infant does not make the joinder improper, because, as an infant without coverture, she would be liable to a suit; and if still an infant at the death of her husband, should that occur, this action would survive against her, it being for necessaries. It is among the privileges of infancy, that an infant may make a valid contract for necessaries, and if she can contract, she can be sued on that contract, either singlyor jointly with her husband, after marriage. So, there was no error in the refusal of the Court to dismiss the suit, because one of the defendants was an infant.

A farther exception was to the order of the Court appointing, at the instance of the plaintiffs below, a guardian ad litem, for the wife. This exception goes upon the ground that the appointment was not within time. The defendant in error responding, says that the appointment was in time, and if not, there was no error committed which can affect the rights of either party; because, in a case like this, it is not necessary that the infant wife.should appear by guardian. It is certainly true, as a general rule, that an infant cannot appear by attorney, but must appear and defend by guardian appointed by the Court for that purpose. 1 Tidd's Practice, 98, 99. 2 Strange, 784. 2 Saund. R. 112, 113, notes. Ib. 117, n. 11 Johns. R., 460. 13 Wend., 577. Chitty on Contracts, 857. 2 Johns. R., 192. 1 Chitty's Pleadings, 412.

The question is, does this rule apply to cases like the present, where the infant is under coverture, and is sued jointly with her husband? It would seem that, since the husband, by the obligation of the marriage, is bound to pay her debt, if for necessaries, and has all the rights of defence which she could set up if sole, there can be no necessity for her separate defence. It is not perceivable what interest she can have requiring a defence separate from her husband.

As he is bound to pay out of his own estate, if the claim be a valid one against her, and if reduced to judgment during coverture, it would be an unnatural presumption that he would collude with the plaintiff, or negligently fail to make all legal defences. Her desire ought to be, if the claim be just, that it be paid; and such a desire is not made unavailing by not herself entering pleas—on the contrary, non-appearance is in accord with it. She being sub protestate viris, it would seem, too, to be competent for him to appoint an attorney for her, and that the case would regularly proceed without more against them both.

[4.J And yet it is laid down, that when an infant feme covert is sued jointly with her husband, she must appear by guardian. 1 Tidd\'s Practice, 99 1 Dane. Abr. 602. Reese\'s Dom. Rel. 266, 267. Bacons Abr. letter K, title Infancy and Age, page 150, vol. 3. Roll\'s Abr., 288, S. C. Cro. Eli., 379, S. C. This rule doubtless applies to cases where the wife has a separate estate, or on some other account, has an interest distinct from that of her husband. Be this as it may, we believe that the appointment was not too late, and that the Court did not err in making it. The power to appoint a guardian ad litem, is incident to all Courts. Coke\'s Litt. 88, 6. Hargraves\' Notes, ad finem, 2 J. R. 192. The time and manner of doing it, is a matter of practice, which varies in different Courts. It seems, from this record, that the cause was for trial on the appeal, when the motion was made to appoint the guardian ad litem.

Both the defendants had appeared by attorney at the first term, and filed the plea of the wife's infancy. Upon the cause being called for trial, the defendants moved to dismiss, because one of the defendants was an infant. The fact of her being an infant, was then admitted by both parties. Contemporary with the motion by the defendants to dismiss, was the plaintiffs' motion to appoint a guardian. Regularly, the rule or order for the admission of a guardian should be applied for by the minor, and granted before plea, and a...