Russel v. People's Sav. Bank

• Citation: 39 Mich. 671
• Parties: Anna E. Russel v. The People's Savings Bank
• Decision Date: 21 November 1878
• Court: Michigan Supreme Court

39 Mich. 671

Anna E. Russel v. The People's Savings Bank

Supreme Court of Michigan

November 21, 1878

Submitted October 25, 1878

Error to Superior Court of Detroit.

Assumpsit upon a promissory note against the Hamtramck Iron Works as principal and Anna E. Russel as indorser. Mrs. Russel brings error.

Judgment reversed with costs, and a new trial ordered.

Henry Russel and Chas. A. Kent for plaintiff in error. Indorsement by a married woman of a note due to her, as security for the debt of a corporation in which she holds stock, may transfer the property in the note (Watson v. Thurber, 11 Mich. 457) but does not make her personally liable, Heburn v Warner, 112 Mass. 271; where a married woman gave a note and mortgage to secure a loan made to her son, the note and mortgage were held void in law, but the debt was a charge on the mortgaged estate, Spencer v. Humiston, 9 Hun 71; a promise by a stockholder to pay the debt of the corporation is a promise to pay the debt of another, Hanson v Donkersley, 37 Mich. 186.

C. J O'Flynn for defendant in error. A married woman has the same power in regard to her individual property that she would have if unmarried (Comp. L., § 4803) and an unmarried woman can make any contract with regard to her property that a man could make with respect to his own property, Comp. L., § 4204; Glover v. Alcott, 11 Mich. 489.

Cooley, J. Campbell, C. J. and Graves, J. concurred; Marston, J. did not sit in this case.

OPINION

Cooley, J.

The suit against Mrs. Russel in the court below was upon a contract of indorsement. It appears that the Detroit Car Works, a corporation in which she was a stockholder, was indebted to the Savings Bank upon a note which was about to be sued, and that to prevent suit she indorsed over to the bank a note held by herself against the Hamtramck Iron Works. This last note does not appear to have been received in exchange for the other, though the note against the Car Works was surrendered; but it was held by the bank as collateral security, and as it exceeded the other note in amount, there would have been a balance to return to Mrs. Russel had it been paid. No payment being made upon it, this suit was brought.

When the indorsement was made, Mrs. Russel was and now is a married woman. Under the statute (Comp. L., § 4803) she was empowered to contract, sell, transfer, mortgage, convey, devise and bequeath her own property and in the same manner and with the like effect as if she were unmarried. Therefore no question can arise respecting her right to transfer the note to the bank by indorsement. Nor, had the transfer been made for any purpose of her own, could her liability on the indorsement have been questioned. She might have purchased property with it, and thus pledged her personal responsibility. Tillman v. Shackleton, 15 Mich. 447; Campbell v. White, 22 Mich. 178; but affirmative proof that the contract concerned her own estate would have been essential Powers v. Russell, 26 Mich. 179; Emery v. Lord, 26 Mich. 431.

But a contract of suretyship is not one by which the woman contracts, sells, transfers, mortgages or conveys her own property or any part of it. She sells nothing by it, buys nothing by it, gives a lien upon nothing by it. She pledges merely her personal responsibility, having in view only the benefit of another, and not any advantage to her own estate. Such a contract is therefore not within the words of the statute. Neither is it within the spirit of the statute, for that had in view the relieving of the wife from disabilities which...