Roberson v. Queen

• Decision Date: 09 March 1889
• Parties: ROBERSON et al. v. QUEEN et al.
• Court: Tennessee Supreme Court

11 S.W. 38

87 Tenn. 445

ROBERSON et al. v. QUEEN et al.

Supreme Court of Tennessee.

March 9, 1889

Appeal from chancery court, Rutherford county; W. A. BEARDEN Chancellor.

Bill by I. M. Roberson & Co. against W. I. Queen and others, to enforce the liability of Mrs. Queen on a certain promissory note. Decree for defendants, and plaintiffs appeal.

Leland Jordan and F. Smithson, for appellants.

J. E Richardson, for appellees.

FOLKES J.

The first question to be disposed of in this cause is whether a married woman, domiciled in the state of Kentucky, is liable in the courts of this state upon a note made by a firm of which her husband was a member, and executed by her as surety for such firm, where under the laws of Kentucky she had before the execution of the note, been emancipated from all the disabilities of coverture, and clothed with all the powers of a feme sole, so far as the right to contract and to sue and be sued was concerned. This inquiry we answer in the affirmative. Though some authorities may be found to the contrary, it may now be said to be well-settled law that the validity of a contract, the obligation thereof and capacity of the parties thereto, is to be determined by the lex loci contractus, (in the sense of the place of performance,) unless there be something in the contract which is deemed hurtful to the good morals, or injurious to the rights, of its own citizens, by the laws of the state or country whose courts are called upon to enforce the contract made in a foreign state or country. The notes involved in this suit were made in Kentucky, payable there, the makers and payers resident there, and, as we have already stated, were valid there, and binding and enforceable against the married woman as fully as if she were a feme sole. See Gen. St. Ky. c. 52, art. 4, § 1; art. 2, §§ 6, 7, --where authority is given the circuit courts of that state to pass judgment of emancipation upon married women under certain circumstances therein set forth. A certified copy of such proceedings is exhibited in this record, showing compliance with the statute on the part of Mrs. Queen. Under these facts, what are the powers and what is the duty of the courts of this state when, by reason of the fact that the defendant has property in this state, we are called upon to enforce, as against the married woman, the collection of the amount due on the notes in question. The general rule as to the enforcement by one state of a contract valid in the state where made and to be performed, is not denied by the counsel for the defendant.

But it is insisted that inasmuch as a note made by a married woman is void, under the laws of this state, and inasmuch as it is the fixed policy of this state to throw around married women the shield of disability, we should not, under any supposed obligation of comity, entertain a suit predicated upon such a contract. If this were a suit against a married woman, a citizen of this state, on a contract made out of the state, there would be much force in the insistence of the defendant. But here the law of the domicile is the same as the law of the contract, and we merely encounter a conflict between the law of the contract and the law of the forum. In such case, especially where the foreign law concerns the capacity of parties to contract, as affected by the disability of infancy and coverture, the lex loci contractus is to govern. Story, Confl. Laws, §§ 103, 241. And although Chancellor Kent in the early edition of his Commentaries seemed inclined to favor the contrary doctrine of the civilians, yet in the notes afterwards added he unequivocally concurs in the conclusion of Mr. Justice Story. 2 Kent, Comm. 233, note, 458, 459, and note. See Whart. Confl. Laws, § 96. See, also, a very elaborate consideration of the authorities in the able opinion of GRAY, C.J., in Mellikin v. Pratt, 125 Mass. 374, which, while it fully sustains our position here upon principle and authority, goes much further than we are called upon to do in this case; that being the case where the married woman, domiciled in the state of Massachusetts, where such a contract was void, made a note in Maine by letter, and such a contract, being valid in Maine, was enforced by the court in Massachusetts. It is valuable for its research and ability in the discussion of the question underlying the one now before us, and for this reason is referred to, without intending to approve or dissent from the point to which the decision there goes. Our own state has more than once recognized and enforced the principle which is controlling in this case. Bank v. Railroad Co., 2 Lea, 676; Bank v. Walker, 14 Lea, 299, 306; Talmadge v. Transportation Co., 3 Head, 337, 341, 342; Pearl v. Hansborough, 9 Humph. 426, 433, 436. See, also, Knowlton v. Railway Co., 19 Ohio St. 260; Scudder v. Bank, 91 U.S. 406. The case of Bank v. Williams, 46 Miss. 618, does not stand in the way of the conclusion we have reached, although some of its argument may seem to do so. There the obligation of the married woman was dependent upon a charter of a Louisiana corporation authorized to lend money to the agricultural interest on notes and mortgages, and to make such contracts with married women, and to enforce the same against their property. It was held that the act in question contemplated the emancipation of the wife so far, and so far only, as to capacitate her to join with her husband in the "hypothecatory obligation;" and while she thus subjected all her property, -- dotal, as well as that embraced in the mortgage,--it was not intended nor supposed that the obligation of the wife extended further than to cover the dotal and paraphernal rights and property in that state. As is said by the learned judge rendering the opinion in that case: "The transaction stands upon ground local to Louisiana, and a policy there which is exceptional from the general rule and general law. Assuming, as a doctrine of the law, that the contract of a married woman valid at the place where made shall be so regarded everywhere, does that embrace an obligation incurred by her growing out of special circumstances, and not included in the general law and policy of the place, but resting altogether on special reasons, and looking to local property for its payment?" And, continuing, it is said: "If by the law of Louisiana a married woman was competent to incur debts generally, and coverture imposed no disability, it would be a different question from that we are dealing with."

The case at bar presents exactly that "different question." Here, as we have seen, under the proceedings in Kentucky, the disability of coverture was absolutely removed, and the married woman was authorized to contract debts generally. It must be noticed, also, that in Bank v Williams the married woman was a resident of Mississippi at the time she made the Louisiana contract, and at the time she was sued, which presents a very different phase of the question under consideration. Nor is there anything in Burchard v. Dunbar, 82 Ill. 450, in any manner antagonistic. It merely holds that "where a contract of an...