Parr v. Paynter

• Decision Date: 15 November 1922
• Docket Number: No. 11447.,11447.
• Citation: 137 N.E. 70,78 Ind.App. 639
• Parties: PARR v. PAYNTER.
• Court: Indiana Appellate Court

78 Ind.App. 639

137 N.E. 70

PARR

v.PAYNTER.

No. 11447.

Appellate Court of Indiana, Division No. 1.

Nov. 15, 1922.

Appeal from Circuit Court, Washington County; James L. Tucker, Judge.

Action by Lucinda Paynter against Lulu M. S. Parr and another. Judgment for plaintiff, and named defendant appeals. Affirmed.

Hottel & Mead, of Salem, for appellant.

Wm. H. Paynter, of Salem, for appellee.

BATMAN, C. J.

[1] This is an action on a promissory note, executed by appellant and her husband to appellee's assignor. After issues were joined on the complaint, and appellant's answer of coverture and suretyship, the cause was submitted to the court for trial. A special finding of facts having been made, pursuant to request, a conclusion of law was stated thereon in favor of appellee, on which judgment was rendered against appellant and her husband. This appeal followed on an assignment of error based on the action of the court in stating its conclusion of law. Appellee has filed a motion to dismiss the appeal on the ground that appellant made no motion for a new trial in the court below. This fact, however, is immaterial, since appellant bases her appeal on the action of the court in stating its conclusion of law. Appellee's motion to dismiss is therefore overruled.

Appellant, in support of her contention that the court erred in stating its conclusion of law in favor of appellee, cites the following facts found by the court, viz.: That the note in suit was executed on February 15, 1911; that at the time of its execution she was, and still is, a married woman, the wife of her codefendant in this action, and that she executed the same as surety for her said husband. Based on these facts she asserts that she is not liable on said note by reason of section 7855, Burns' 1914, which reads as follows:

“A married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner, and such contract, as to her, shall be void.”

On the other hand appellee cites the fact that said section 7855 was expressly repealed by an act of the General Assembly of 1919 (Acts 1919, p. 90), without any saving clause, and that this action was not begun until July 26, 1921. Based on these facts, she contends that said section 7855 does not afford appellant a defense to the note in suit, and therefore the conclusion of law in question was correctly stated. In considering these opposing contentions, it should be noted that said section 7855 is section 4 of “An act concerning husband and wife,” approved April 16, 1881, and that section 1 thereof reads as follows:

“All the legal disabilities of married women to make contracts are hereby abolished except as herein otherwise provided.” Section 7851, Burns' 1914.

It follows that the provision of said section 4 constitutes an exception under said section 1. It was repeatedly held, in effect, prior to the repeal of said section 4 by the act of 1919, that a contract of suretyship by a married woman was not void by reason of its provision, but only voidable; that, since the right conferred by said section to avoid such contract is based on coverture, a personal defense, it could be exercised only by such married woman, and her privies in blood, or representation, and that until so exercised such contract constituted a binding obligation. Bennett et al. v. Mattingly (1886) 110 Ind. 197, 10 N. E. 299, 11 N. E. 792;Lackey v. Boruff (1898) 152 Ind. 371, 53 N. E. 412;Irwin v. Marquett (1900) 26 Ind. App. 383, 59 N. E. 38, 84 Am. St. Rep. 297;Doney v. Laughlin (1911) 50 Ind. App. 38, 94 N. E. 1027.

[2] The effect of said sections 1 and 4 (sections 7851 and 7855, Burns' 1914), in the light of the decisions cited, was to confer upon married women the right to enter into contracts of suretyship the same as if they were unmarried, but reserved to them the privilege of avoiding the same, if they should elect so to do. This conclusion leads us to a consideration of the effect which the repeal of said section 4 (section 7855, Burns' 1914) had upon contracts of suretyship entered into by married women prior thereto, where the privilege conferred thereby had not been exercised.

[3] It may be stated as a general rule that, in the absence of a legislative enactment to the contrary, the repeal of a statute without a saving clause, where no vested right is impaired, completely obliterates it, and renders the same as ineffective as if it had never existed. 25 R. C. L. 932; 36 Cyc. 1224; 26 Am. & Eng. Encyc. of Law, 745; Vance v. Rankin, 194 Ill. 625, 62 N. E. 807, 88 Am. St. Rep. 173; Ex parte McCardle, 7 Wall. 506, 19 L. Ed. 264;Brown's, etc., v. Western, etc., 110 Va. 321, 66 S. E. 49;Taylor v. Strayer (1906) 167 Ind. 23, 78 N. E. 236, 119 Am. St. Rep. 469. The repealing statute under consideration has no saving clause, and we find no statute in this state which would prevent an application of the general rule. Therefore we are only required to determine whether its application in the instant case would impair any vested right of appellant. It is clear that the repeal of said section 7855 did not impair any right conferred by the contract in suit, but, if held to be applicable thereto, merely enables appellee to enforce the contract which we must presume the parties intended to make. Burget v. Merritt (1900) 155 Ind. 143, 57 N. E. 714;Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct. 408, 27 L. Ed. 682;Mutual, etc., Co. v. Winne, 20 Mont. 20, 49 Pac. 446;Wistar v. Foster, 46 Minn. 484, 49 N. W. 247, 24 Am. St. Rep. 241. As said in the case of Burget v. Merritt, supra:

“It is a contradiction in terms to say that the taking away of the means by which a contract may be repudiated or ignored and the providing of a remedy to enforce the contract as the parties made it is an impairment of the obigation of the contract.”

[4] It follows that, if the repeal of said section impaired any right of appellant, it must have been one which the statute itself conferred. A mere reading of the section of the statute under consideration discloses that it conferred a right on all married women, viz. a right to avoid their contracts of suretyship. But, in the instant case, was such right vested prior to the repealing act of 1919? In considering this question it should be borne in mind that all rights conferred by statute are not vested, but some are merely privileges, which remained inchoate until exercised. A vested right has been defined by one author as being “an immediate fixed right of present or future enjoyment,” and by another as “an immediate right of present enjoyment, or a present fixed right of future enjoyment,” as stated in Pearsall v. Great Northern R. Co., 161 U. S. 646, 16 Sup. Ct. 705, 40 L. Ed. 838. It must be one which is immediate, absolute, complete, unconditional, perfect within itself, and not dependent upon a contingency. State v. Hackman, 272 Mo. 600, 199 S. W. 990. As applying to the present or future enforcement of a demand, or a legal exemption from a demand made by another, it must be something more than a mere expectation, based on an anticipated continuance of an existing law. 1 Sutherland, Stat. Const. p. 548; Cooley's Const. Lim. p. 438. It is clear that the privilege conferred on married women by said section 7855 cannot be classed as a vested right, but must be construed as a mere privilege which could only be exercised by them, and their privies in blood or representation, and if not so exercised is wholly foreign to any contract of suretyship executed by them. Such privilege, until exercised, was merely an inchoate right conferred by the Legislature, which it might have withdrawn at any time, and which was finally done by the act of 1919. This being true, the general rule stated above, as to the effect of repealing a statute, is applicable in the instant...