Ricker v. Ricker
| Decision Date | 15 April 1924 |
| Citation | 248 Mass. 549,143 N.E. 539 |
| Parties | RICKER v. RICKER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Essex County; Quinn, Judge.
Suit by Marian A. Ricker against Perley G. Ricker, to require defendant to pay note given by the plaintiff and defendant. From an interlocutory decree sustaining a demurrer, and a final decree dismissing the bill, plaintiff appeals. Reversed, and decree entered.
R. C. Davis, of Boston, for appellant.
C. B. Terry, of Gloucester, for appellee.
In this suit in equity the plaintiff alleges that she was granted a divorce from the defendant, her former husband, which divorce became absolute on April 9, [248 Mass. 550]1923; that on November 26, 1921 she signed with the defendant as makers a note payable to the Gloucester Safe Deposit & Trust Company; that she received no consideration for her signature and signed the note solely for his accommodation; that at the maturity of the note the defendant refused to pay it; that on November 1, 1922, the holder of the note demanded payment of her; that she then paid the interest and gave her own note for $270 (the amount of the original note), and on May 1, 1923, paid the interest and a sum on the principal and gave her note in renewal for the sum of $265, payable in six months. She further alleged that, by reason of becoming an accommodation maker upon the original note, she is now personally indebted to the trust company upon her personal note of $265, and has paid from her own estate the interest and the sum of $5 on the principal; and that the defendant, though often requested, refuses to indemnify her. She asked in her prayer that the defendant be ordered to pay the note given by the plaintiff to the Gloucester Safe Deposit & Trust Company and exonerate her from liability thereon, and further that he be required to pay the plaintiff the sums expended by her for interest and payments of principal on said note.
In the superior court the defendant's demurrer was sustained by an interlocutory decree; a final decree was entered dismissing the bill, from which decrees the plaintiff appealed.
The plaintiff's bill was filed after the divorce became absolute. Contracts between husband and wife are prohibited, G. L. c. 209, § 2; and a promissory note for money lent by the wife to the husband is void, Gahm v. Gahm, 243 Mass. 374, 137 N. E. 876, and cases cited. But rights arising during coverture may be enforced between parties who are no longer husband and wife, if they rest upon established principles of equity and not upon contract express or implied. It was decided in Savage v. Winchester, 15 Gray, 453, that a widow who had mortgaged her estate to secure her husband's debt, and had paid the debt since his decease, could prove her claim for the purpose of exonerating her estate before commissioners in insolvency. If the plaintiff signed the note, as alleged in her bill, for her husband's accommodation, she became a surety for him. Guild v. Butler, 127 Mass. 386, 387. In Browne v. Bixby, 190 Mass. 69, 76 N. E. 454,5 Ann. Cas. 642, a joint note was given by husband, and the wife for a loan made to the husband, and the wife gave a mortgage on her real estate to secure the note; after the death of the husband and wife, a suit in equity was brought by the administrator of the wife's estate against the executors of her husband's will to exonerate her property and relieve her estate from liability on the note. Chief Justice Knowlton said:
See Atkins v. Atkins, 195 Mass. 124, 80 N. E. 806,11 L. R. A. (N. S.) 273, 122 Am. St. Rep. 221;Fitcher v. Griffiths, 216 Mass. 174, 103 N. E. 471.
[3] These decisions are not to be distinguished, because in them specific property was included, while in the case at...
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