Plotkin v. Plotkin

• Decision Date: 19 April 1924
• Citation: 125 A. 455,32 Del. 455
• Court: Delaware Superior Court
• Parties: JOSEPH PLOTKIN v. CECELIA PLOTKIN and JOSEPH BADER

125 A. 455

32 Del. 455

JOSEPH PLOTKIN v. CECELIA PLOTKIN and JOSEPH BADER

Superior Court of Delaware, New Castle County

April 19, 1924

Superior Court for New Castle County, January Term, 1924.

Action of replevin, No. 82, November Term, 1923.

Action brought September 10, 1923, to recover the possession of certain personal property named in the writ.

The narr. was filed on November 16, 1923, to which a plea in abatement was filed by one of the defendants, Cecelia Plotkin, setting up the fact that "the plaintiff, for a long time before and at the time of the commencement of this suit, was and continued and still is married to her, the said defendant," and she, therefore, contends that including her as one of the defendants in the suit amounts to a misjoinder. The plaintiff demurred to this plea and the question was argued at the January Term, 1924.

Judgment is entered for the defendant.

William Prickett for plaintiff.

James I. Boyce for defendants.

RICHARDS and RODNEY, J. J., sitting.

OPINION

RICHARDS, J.

The question raised by the plea in abatement and demurrer filed in this case is, whether a husband can sue his wife, or as it is generally expressed by text writers, whether one spouse can sue the other. There is no branch of the law which has undergone greater changes than that which deals with the mutual rights, duties, and liabilities of husband and wife. Under the early Roman law the marital power of the husband was absolute. The identity of the wife was so completely merged in that of the husband, that he not only became the possessor and owner of all her property and was entitled to all her labor and earnings, but he could punish, sell or even kill her. 30 C. J. 506.

Likewise at common law, the legal existence of the wife was merged in that of her husband, and they were termed and regarded as one person in law. She could not contract in her own name, own property, sue or be sued. Johnson v. Greens' Garnishee, 1 Harr. 442; Valentine v. Tantum, 12 Del. 402, 7 Houst. 402, 32 A. 531; Black v Clements, 18 Del. 499, 2 Penne. 499, 47 A. 617; Forbes v. Thompson, 18 Del. 530, 2 Penne. 530, 47 A. 1015; Vincent v. Ireland, 18 Del. 580, 2 Penne. 580, 49 A. 172; Masten v. Herring, 22 Del. 282, 6 Penne. 282, 66 A. 368; Eliason v. Draper, 25 Del. 1, 2 Boyce 1, 77 A. 572; Godman v. Greer, 12 Del.Ch. 397, 105 A. 380; Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25; Kalfus v. Kalfus, 92 Ky. 542, 18 S.W. 366; Stonesifer v. Shriver, 100 Md. 24, 59 A. 139; Keister's Adm. v. Keister's Ex'rs, 123 Va. 157, 96 S.E. 315, 1 A. L. R. 439.

Constitutional amendments have been adopted in some states removing, to a certain extent, the common law disabilities of married women and enlarging their property right. The tendency of modern legislation seems to be to remove the incapacity of a married woman, and today there are many statutes on the subject in England and also in most of the states in this country removing the greater part of her common law disabilities, and in some instances removing them entirely. In some states which have statutes granting to married women full capacity to sue and be sued, the courts have held that an action at law can be brought by a wife against her husband. These decisions are based upon the theory, however, that the statutes of the states in which they were rendered have entirely destroyed the unity of the legal identity of husband and wife and replaced it by the equality of each in legal identity, in consequence of which they possess equal rights of owning property, of contracting with others and with each other and of suing and being sued. Mathewson v. Mathewson, 79 Conn. 23, 63 A. 285, 5 L. R. A. (N.S.) 611, 6 Ann. Cas. 1027; Rice v. Crozier, 139 Iowa 629, 117 N.W. 984, 130 Am. St. Rep. 340; May v. May, 9 Neb. 16, 2 N.W. 221, 31 Am. Rep. 399; Manchester v. Tibbetts, 121 N.Y. 219, 24 N.E. 304, 18 Am. St. Rep. 816; Winter vs. Winter, 191 N.Y. 462, 84 N.E. 382, 16 L. R. A. (N.S.) 710.

Other decisions rendered in states having statutes giving a married woman the right to the sole control of her property and to sue generally, hold that she cannot sue her husband. The ground for these decisions being that the statutes did not, in express words, confer upon the husband and wife the right to sue each other. Perkins v. Blethen, 107 Me. 443, 78 A. 574, 31 L. R. A. (N.S.) 1148; Heacock v. Heacock, 108 Iowa 540, 79 N.W. 353, 75 Am. St. Rep. 273; Kalfus v. Kalfus, 92 Ky. 542, 18 S.W. 366; Barton v. Barton, 32 Md. 214; Ritter v. Ritter, 31 Pa. 396; Bertles v. Nunan, 92 N.Y. 152, 44 Am. Rep. 361; Small v. Small, 129 Pa. 366, 18 A. 497.

The following quotation from the opinion of Judge Woodward in the case of Ritter v. Ritter, 31 Pa. 396, we consider very expressive:

"The marriage relation, as old as the human race, and the basis of the family, which is itself the basis of society and civil states, has always been sedulously guarded and cherished by the common law."

The disabilities imposed upon married women by the common law continued in force in this state until 1865, when an act was passed entitled, "An act for the benefit of married women." 12 Del. Laws c. 572. This act provides that the real estate, mortgages, stocks and silver plate belonging to any married woman at the time of her marriage, or to which she may become entitled at any time during marriage, shall be her sole and separate property and shall not be subject to the disposition of her husband; but she cannot sell said property without the consent of her husband. The next act was passed in 1871 (14 Del. Laws c. 80), and provides, that the money or other property of a married woman, not living with or supported by her husband, and which can be distinguished from his property, shall not be deemed her husband's property or taken for his debts so long as they live apart and he fails to support her; and further provides that while her separation continues she may sue and be sued, as a single woman. The next act was passed in 1873 (14 Del. Laws c. 550), Section 4 of which provides:

"That any married woman may prosecute and defend suits at law or in equity for the preservation and protection of her property as if unmarried, or may do it jointly with her husband, but he alone cannot maintain an action respecting his wife's property; and it shall be lawful for any married woman to make any and all manner of contracts necessary to be made with respect to her own property, and suits may be maintained on such contracts as though the party making them was a femme sole."

The next act was passed in 1875 (15 Del. Laws c. 165), and provides that the real and personal property of any married woman acquired in any manner or from any person other than her husband, shall be her sole and separate property; also that any executrix or administratrix, being a married woman, shall have as full power to act in such capacity as though she were a femme sole; also that she may give a bond, mortgage or recognizance to secure the purchase money for real estate; and that she may give a bond as if she were a femme sole.

The next act of this character, being the one which we are called upon to construe in this case, was passed in 1919 and provides as follows:

"That the property of a married woman, whether real, personal, or mixed and choses in action which she may have acquired in any manner, and all the income, rents and profits thereof, shall be deemed to be her sole and separate property and she may sell, convey, assign, transfer, devise, bequeath, encumber or otherwise dispose of the same, and she may contract jointly (including with her husband) or separately, sue and be sued, and exercise all other rights and powers, including the power to make a will, which a femme sole may do under the laws of this state." 30 Laws of Delaware, c. 197, § 16 (Rev. Code 1915, § 3048).

While the tendency of each of the acts above mentioned has been to further remove the disabilities placed upon a married woman by the common law, yet none of them has by express words conferred upon her the right to sue her husband or provided that she can be sued by her husband in a court of law.

Said acts being in derogation of the common law, it has been generally held by the courts in this country, including those in our own state, that they must be construed strictly. In the case of Valentine v. Tantum, reported in 12 Del. 402, 7 Houst. 402, 32 A. 531, which is the first reported case in this state, in which the acts for the benefit of married women which existed at that time were construed, the Court used the following language:

"While it is true as a general proposition that statutes in derogation of, or repugnancy to, the common law, are to be construed strictly, and nothing is to be intended in aid of them, except what is clearly imported by their language; yet where they are of a remedial character (as the acts in question must be taken to be) the rule does not so rigidly apply. But at the same ti me, the language of such acts, where there is any bearing upon the question,...