Obermayer v. Greenleaf

• Decision Date: 31 March 1869
• Citation: 42 Mo. 304
• Parties: SIMON OBERMAYER et al., Respondents, v. DAVID N. GREENLEAF and SARAH E. GREENLEAF, Appellants.
• Court: Missouri Supreme Court

42 Mo. 304

SIMON OBERMAYER et al., Respondents,

v.DAVID N. GREENLEAF and SARAH E. GREENLEAF, Appellants.

Supreme Court of Missouri.

March Term, 1869.

Rankin & Hayden, for appellants.

I. The contract of defendants, solemnly made in anticipation of marriage, and published by the parties to it, and brought home to the defendants, operated in equity to relieve the husband from the wife's debts contracted dum sola, and made the wife and her property the sources to which chancery will compel the creditors of the wife dum sola to resort. The principle of equity is that where a debt is created with reference to or on the faith of a particular property, that property shall be followed for the payment of the debt; and where there is an express published agreement between the parties that the estate and property of the husband shall not be liable for the wife's debts dum sola, but that she shall retain exclusive right over her own property during the marriage, thus carrying out by contract the principle of equity and making her own property liable during coverture for those debts which she had contracted dum sola, the English courts have declared that equity will compel the creditors to resort to the wife's separate property. (Reeves' Dom. Rel. p. 53; Freeman v. Goodland, Ch. R. 295; Powell v. Bell, Abridg. of Cas. in Eq. 16; Prac. in Ch. 256.)

A marriage contract like the present has the effect in equity of altering the ordinary obligations. But it is perfectly competent for the parties by express contract to alter the ordinary obligations arising from marriage. If the liability of the husband arises from the contract of marriage, how can it arise or exist when there is an express stipulation in that contract to the contrary? Will it be said that the liability of the husband is a legal consequence of marriage, and that the parties by express contract can not do away with that legal consequence? But why may not this be done? Is the stipulation that the wife's own property, not the husband's, shall be liable, immoral or against public policy? If it be said that it is contrary to an express doctrine of the common law, is it not contrary thereto that the wife should hold real and personal property of her own, without the intervention of a trustee even; that she should sell to and purchase of her husband without a trustee; should, in short, be a femme sole--not merely sub modo, but, as courts of equity have declared her, absolutely a femme sole--in respect to her separate property, where she is not specially restrained by the instrument under which she acts? It is now the established doctrine that a femme covert may contract and bind her separate estate, and that her separate estate is chargeable with debts contracted on the faith of it, and that she may contract a debt directly to her husband. Are not these direct infringements of the rules of common law, and do not they require courts of equity to go quite as far as this court is asked to go here? (Methodist Church v. Jacques, 17 Johns. 548, reviewing Chancellor Kent's decision in 3 Johns. Ch. 77; North Am. Coal Co. v. Dyett, 7 Paige, 15; 22 Wend. 528; 4 Sim. 82; 1 Craig & Phil. 48; 15 Ves. 596; Overall v. Ellis, 38 Mo. 209; Strong v. Skinner, 4 Barb. 546.)Ewing & Holliday, for respondents.

I. As the law by marriage gives to the husband all his wife's personal estate, it makes him liable for his wife's debts owing at the period of marriage. (Bright's Husband and Wife, vol. 2, pp. 1, 2, § 1.) This is true although the wife has not one dollar of personalty at the time of the marriage. (Reeves' Dom. Rel. 49 et seq., 53.) The husband's liability does not depend on the fact that he received property of her.

II. If the defense set up in this case should be allowed, the plaintiffs would be deprived of their rights forever, and could never recover their debt, even though the wife should, with her husband, make thousands of dollars per year. The plaintiff can not sue the wife and get a personal judgment...