De Vries v. Conklin

• Decision Date: 10 January 1871
• Citation: 22 Mich. 255
• Court: Michigan Supreme Court
• Parties: Charlotte De Vries and Peter De Vries v. Charles A. Conklin

22 Mich. 255

Charlotte De Vries and Peter De Vries v. Charles A. Conklin

Supreme Court of Michigan

January 10, 1871

Heard January 9, 1871 [Syllabus Material]

Error to Lenawee circuit.

This was an action of assumpsit brought by Charles A. Conklin in the circuit court for the county of Lenawee, against Peter De Vries and Charlotte De Vries upon a promissory note, signed by both defendants. It appeared upon the trial that Charlotte De Vries was the wife of the other defendant; that the note was voluntarily executed and that the sole consideration for it was the discontinuance of a suit in assumpsit then pending in a justice's court, between the plaintiff and Peter De Vries, one of the defendants.

The court found for the plaintiff, for whom judgment was entered and the cause now comes into this court by writ of error.

Judgment reversed, with costs, and a new trial ordered.

Eldredge & Walker, for plaintiffs in error:

I. At common law it is conceded that the wife would not have been liable on a contract: Reeve's Dom. Rel., p. 182 (*98); Tyler on Inf. and Cov., pp. 315, 317.

II. Has the statute changed the rule of the common law? 2 C. L., §§ 3292-5, p. 966. If it has done so it is very far from being a statute for the protection of the rights of married women. Such a construction will not readily be accepted if there is doubt: Parsons v. The People, Oct. Term, 1870.

III. The decisions of other states would seem to hold that similar statutes were not considered as imposing such a liability upon a married woman in such cases. (a) That such an obligation would not create a charge upon her separate estate:

Yale v. Dederer, 18 N. Y., 265; S. C., 22 Id. 450; Brookings v. White, 49 Me. 479; Beals v. Cobb, 51 Me. 348; Shannon v. Carmey, 44 N. H., 592; Bartlett v. Bartlett, 4 Allen 440; Crane v. Kelley, 7 Allen 250; Frary v. Booth, 37 Vt. 78; Wolf v. Van Meter, 19 Iowa 134; Cotts v. McKee, 26 Ind. 223; Manchester v. Sohler, 47 Barb. 155; Matthewmaier's Case, Law Rep., 3 Eq. 781; Tracy v. Keith, 11 Allen 214; Jones v. Crossthwaite, 17 Iowa 393. (b) A married woman cannot make a valid accommodation note: Scudder v. Geri, 18 Abb. Prac., 228; S. C., 28 How. Prac., 155.

Geddes & Miller, for defendant in error:

I. The reason for any legal disability ceasing, the disability itself should cease. The reason for former restrictions upon the ability of married women to contract arose from the wife's supposed legal merger in her husband. This old doctrine of merger of wife's legal existence in husband has been exploded in this state: Burdeno v. Amperse, 14 Mich. 97.

II. In England, by a system of fictions and equity decisions, married women had nearly or quite the same power as a femme sole in regard to their separate estates. (a) They could give promissory note for borrowed money, and payment could be enforced out of their separate estates: 17 Vesey 366. (b) They could accept accommodation bill for another's benefit, and equity would enforce it: Mss. Case, quoted in Chitty on Bills. page 21, note E. (c) They could join with husband in promissory note to secure husband's debts, and equity would enforce it: 9 Vesey 189, 486; 11 Vesey 209.

III. The peculiar common law disabilities of married women having been removed in this state, no reason remains for calling aid of equity courts to enable a married woman to make, or any one interested to enforce any such contract as married women could make, or such as could be enforced by equity: Burdeno v. Amperse, 14 Mich. 97.

IV. This court has declared that our statutes, relative to married women, were not designed to keep alive the old common law system of their legal nonentity, and disability to contract, but to establish a new and better system, and that our statutes should be liberally construed to carry out such intent. See opinion of Cooley J. in Tillman v. Shackelton, 15 Mich. 457.

V. A mortgage is a weightier and graver contract than a promissory note. It is at once a promise to pay and security for fulfillment of the promise. The mortgagor not only creates a lien upon mortgaged premises, but is personally liable for payment of any deficit in proceeds of mortgaged property to satisfy the debt: Watson v. Thurber, 11 Mich. 457. It is contended that the legal power to make such mortgage for such purpose, includes within it a power to make the note in question for the same purpose.

OPINION

Cooley, J.

The question presented on the merits in this case is, whether a married woman can be personally liable in this state on a promissory note which she has signed as surety for her husband, and where the sole consideration was the pre-existing debt of the husband.

Our statute has deprived the husband of those rights in the property of the wife which the common law conferred upon him, and has declared that her real and personal estate which she has at the time of her marriage, or which she may thereafter acquire, shall be and remain hers, and may be contracted, sold, transferred, mortgaged, conveyed, devised and bequeathed by her in the same manner and with the like effect as if she were unmarried: Comp. L., p. 966.

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