Prentiss v. Paisley
| Decision Date | 13 January 1890 |
| Citation | 25 Fla. 927,7 So. 56 |
| Parties | PRENTISS et ux. v. PAISLEY et al. |
| Court | Florida Supreme Court |
Appeal from circuit court, Marion county; J. J. FINLEY, Judge.
Syllabus by the Court
1. A bill of review, for error of law apparent upon the record will lie, although the decree sought to be reviewed is a final decree, consequent upon a decree pro confesso, for failure of the defendant to plead.
2. Where the bill does not justify the final decree following the decree pro confesso, a bill of review for error apparent upon the record is a proper remedy for relief in the court rendering such decree, and an appeal the remedy through the appellate court.
3. A married woman is by the common law incapable of making a contract that will bind her personally, either in law or equity; and for this reason there cannot, in the absence of legislation changing the common law, be a judgment or decree against her personally for the recovery of money, as distinguished from a decree charging her separate equitable estate, or other property, with the payment of money. No exception to this rule is created by the existence of a marriage contract between busband and wife giving her the right to control and manage her separate estate and property the same as if she had remained unmarried.
4. A married woman is personally liable for her civil torts including such frauds as do not grow out of, or are not directly connected with, or a part of, a contract which she has undertaken to make.
5. Wherever coverture avoids a contract which a wife has attempted to make, it likewise bars a personal recovery against the wife on the ground of the fraud connected therewith; and the bar cannot be overcome by suing her in an action ex delicto.
6. It is error to decree a recovery of money of or against a married woman personally, in a suit in equity instituted to set aside a contract for the sale of land on the ground of fraud, and to recover the amount of a cash payment made thereon by the complainant.
7. The marital relation does not of itself disqualify a husband from acting as the agent of his wife with reference to her separate estate.
8. The person in whom the legal title to property is vested in trust for a married woman is a necessary party to a bill seeking to charge the property with the payment of money paid to her.
COUNSEL Miller & Spencer, for appellants.
S. D McConnell and W. H. Ingram, for appellees.
This is an appeal from an order denying an injunction and dismissing a bill of review.
The bill of review, considered as one for error of law apparent upon the face of the record, is maintainable. The term 'record,' as used in connection with such bills means the pleadings and decree in the cause as to which the complaint is made. Whiting v. Bank, 13 Pet. 6; Shelton v. Van Kleeck, 106 U.S. 532, 1 S.Ct. 491. Looking at the Paisley decree, complained of, we perceive one of its features to be a personal recovery against Mrs. Prentiss, and the pleading or bill shows the claim to be for a money demand growing out of a contract; the sum recovered being the amount of a cash payment alleged to have been made on a contract for the sale of land, in which the complainant charges he has been defrauded.
A married woman is by the common law incapable of making a contract that will bind her personally, either in law or equity; and for this reason there can be no personal judgment or decree of recovery against her. Goss v. Furman, 21 Fla. 406; Randall v. Bourgardez, 23 Fla. 264, 2 South. Rep. 310; Dollner v. Snow, 16 Fla. 86; 1 Bish. Mar. Wom. § 601; Pilcher v. Smith, 2 Head, 208; McQuaid v. Fontane, 24 Fla. 509, 5 South. Rep. 274, Choppin v. Harmon, 46 Miss. 304; Bank v. Williams, Id. 618; Cary v. Dixon, 51 Miss. 593; Mallett v. Parham, 52 Miss. 921; Bank v. Partee, 99 U.S. 325; Wallace v. Rippon, 2 Bay, 112; Rodemeyer v. Rodman, 5 Iowa, 426; Lewis v. Perkins, 36 N. J. Law, 133; Pentz v. Simonson, 13 N. J. Eq. 232; Pierson v. Lum, 25 N. J. Eq. 390. Several of the above authorities are to the effect that where she has been given authority by statute to make personal contracts the proceedings must show the existence of the special circumstances as to or under which the power has been conferred or may be exercised; and others of them adjudicate that, when it is sought to charge her property with liability, the bill, or other proper pleading, must show the character of her estate in the property sought to be charged, in order that the court may know that it is chargeable. The decree assailed does not adjudicate a charge upon any particular estate or property of Mrs. Prentiss, but the feature of it in question is a personal recovery. If it be that a personal judgment or decree may be rendered against a married woman licensed as a free trader under our statute of March 11, 1879, (McClel. Dig. 756, 757,) it is sufficient on this point to say that Mrs. Prentiss is not sued as such.
A married woman is personally liable for her wrongful civil acts or actual torts, including frauds not growing out of, or founded upon, or directly connected with, or a part of, or the means of effecting, a contract which she has undertaken to make; and she may be sued jointly with her husband in respect to such acts, or separately, if she survives him. His liability for her torts is a result of the mere fact that by the common-law rules a suit cannot be maintained against the wife alone during coverture. If, before or pending the action, she dies, the right of action against him falls. Whenever her coverture avoids the contract, it is likewise a bar to a personal recovery for the fraud; and this cannot be overcome by suing ex delicto. 2 Bish. Mar. Wom. §§ 254-256, 261, 263; 1 Bish. Mar. Wom. §§ 842, 905-908; Owens v. Snodgrass, 6 Dana, 229; Smith v Taylor, 11 Ga. 20; Kowing v. Manly, 49 N.Y. 192; Association v. Fairhurst, 9 Exch. 422; Wright v. Leonard, 11 C. B. (N. S.) 258; Capel v. Powell, 17 C. B. (N. S.) 743. As to when a tort will be deemed the wife's, and when the husband's, vide 1 Bish. Mar. Wom. § 905, and 2 Bish. Mar. Wom. §§ 257-260. The fraud in the case before us, in so far as it is imputable to the wife, is not one sounding in tort, but is a part of, and directly connected with, the contract for the sale of the land, and hence not one as to...
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