Worthington v. Cooke

• Court: Maryland Supreme Court
• Writing for the Court: Alvey, J., delivered the opinion of the court.
• Citation: Worthington v. Cooke, 52 Md. 297 (Md. 1879)
• Decision Date: 15 July 1879
• Parties: MARY G. WORTHINGTON v. ARIETTA COOKE and Israel Cooke, Her Husband.

52 Md. 297

MARY G. WORTHINGTON v. ARIETTA COOKE and Israel Cooke, Her Husband.

Court of Appeals of Maryland

July 15, 1879

Appeal from the Baltimore City Court.

The case is stated in the opinion of the court.

The appellees were the defendants below and demurred to the plaintiff's declaration. The court below, (Garey, J.,) sustained the demurrer, and the plaintiff appealed.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, JJ.

L L. Conrad, for the appellant.

The Act of 1867, ch. 223, sec. 2, empowers a married woman as lessee or grantee, not only to bind herself but her assigns; and the extent of that power is defined to be "the same as if she was a feme sole. " A man would have no greater power. It endows a married woman, therefore, with the very fullest capacity to covenant within the limits prescribed by the Act. It is obvious, too, that such covenant was intended to be her personal obligation, for she is authorized to "bind herself." The capacity to contract given her by this statute was designed to be a new capacity--one not possessed by her before, namely, to bind herself personally. The statute was unnecessary, if its object was to enable her to bind her separate estate; that she was competent to do without this statute. Besides, the language of the Act is free from ambiguity, and invests her unmistakably with power to "bind herself and her assigns." This language is in the usual form in which personal covenants are made.

Covenants to pay rent and taxes are covenants "running with the land," by which is meant that they follow the land into the hands of the assignees, and bind them during their holding through privity of estate. That is all. A covenant running with the land is no less a personal covenant than one not running with the land. Its effect is not to subject the land to any lien or charge, or create any other liability than a personal obligation to fulfil the covenant, or to answer for its breach. Lester v. Hardesty, 29 Md 50; Mayhew v. Hardesty, 8 Md. 479.

Such being the case, the inquiry recurs, ought the covenantor to be sued for a violation of her covenant, at law or in equity?

It is clear that under the decisions of this court there was no remedy in equity.

Courts of equity undoubtedly exercise peculiar jurisdiction in regard to the persons and property of married women; and principally in regard to their property. 2 Story's Eq sec. 1366.

It is also true that such courts concern themselves, not with the general property of married women, but with their separate property.

In equity, however, a married woman possesses power to dispose of her separate estate; and such estate is liable for all debts, charges, encumbrances and other engagements which expressly or by implication she charges thereon. Her agreement, however, creating the charges is declared to be not a contract, but an exercise of her power of disposition--an appointment pro tanto out of the separate estate; for as a feme covert, even in equity she is held incapable of contracting. 2 Story's Eq. sec. 1399.

In Francis v. Wigzell, 1 Madd. 258, Sir Thomas Plummer said: "There is no case in which this court has made a personal decree against a feme covert. She may pledge her separate property and make it answerable for her engagements, but where no particular fund is sought to be charged, but only a personal decree against her, the bill cannot be sustained." Aylett v. Ashton, 1 Mylne & Craig, 105-111; 2 Story's Eq. sec. 1397, and especially note 1.

In Maryland it is settled law that a married woman cannot bind or affect her separate estate, unless the obligation sought to be enforced presents upon its face some evidence of the intent to charge the estate, or there be some evidence aliunde tending to prove such intent. Koontz v Nabb, 16 Md. 549; Jackson v. West, 22 Md. 84; Wilson v. Jones, 46 Md. 349.

It is perfectly clear that the covenants under consideration in the case at bar, being simply covenants to pay ground-rent taxes, etc., in the usual form, neither expressed nor implied an intent, nor were designed, to bind the separate estate of the covenantor.

This being established, and it being true as matter of law, as heretofore shown, that equity has no power against a married woman in personam, it appears perfectly plain that the appellant had no remedy in equity against the appellant, Arietta Cooke.

The next question is, was she also without remedy at law?

The affirmative of this question involves the assertion that she had no remedy at all. There is no escape from this consequence. The appellees gravely ask this court to decide that in Maryland there may exist a perfect obligation--a contract legal in form and made between persons legally competent to make it, without any remedy to enforce it.

By the common law a married woman could be grantee in a deed, without the consent of her husband. He might, it is true, divest the estate by dissent. But if he neither agreed nor disagreed, the purchase was good. Baxter v. Smith, 6 Binn. 427; 4 Cruise Dig. 25.

She might even be grantee upon condition, and would be bound to perform the condition. 1 Roll. Abr. 421; 2 Cruise Dig. 35; Patterson v. Robinson, 25 Pa. St. 82.

The Code having endowed her with legal independence, so to speak, doubts might well exist, as recited in the preamble of the Act we are considering, whether a power to covenant did not arise in her as a proper and legal consequence of her legal independence, and as incident to her legal ownership of property.

It was, in order to set such doubts at rest, and to make her responsibilities commensurate with her rights, that the Act of 1867 was passed.

It was contended below, that, inasmuch as sec. 2 contained no provision of special remedy for breach of the covenants therein authorized to be made, therefore, whatever its purpose, the section must be held to be ineffectual.

We are not able to see the force of this conclusion. No need existed that any special remedy should be provided. Remedy for breach of covenant already existed, and had existed and been pursued from times of immemorial antiquity. If legal capacity to make a covenant existed, the remedy was ready at hand. The authority to "bind herself" carried with it legal responsibility as a necessary consequence. Can it be said that any one can "bind" himself, if the obligation may not be enforced. There is no such thing as a "binding" obligation that cannot be enforced. The enforceability alone makes it binding. That is what is meant by being bound, namely, that the obligation is enforceable. If it is not enforceable, then you are not bound. To hold otherwise would be to say that a "binding" obligation may be one that is not binding.

This court has never decided, nor do we believe it possible for any court to decide, that there exists any contract authorized by law, made by a person legally competent to make it, for breach of which there is absolutely no remedy. Such a decision would be an anomaly in judicial history, and involve a feebleness of judicial power, and a failure of justice, without precedent or analogy.

This court has declared explicitly that in Maryland, at least, there is no right without a remedy. In Wright v. Freeman, 5 H. & J. 475, it said, "Now the proposition is most true, that wherever the law gives a right it also gives a remedy for the violation of such right." County Comm'rs v. Duckett, 20 Md. 478.

The remaining question arising out of the record in this case is: was the husband properly joined as co-defendant?

In Bridges v. McKenna, 14 Md. 266-267, this court held, that where the property of a married woman, doing business as sole trader under the Act of 1842, ch. 293, sec. 8, incorporated into the Code, Art. 45, sec. 7, was attached for her debts, her husband must be sued as co-defendant. The court says: "The statute enables her to acquire and dispose of certain property as a feme sole, but does not entirely remove her disability. Being covert, she cannot sue or be sued in a court of law as a feme sole; that is to say, without the joinder of her husband. Bridges v. McKenna, 14 Md. 266-267; Hubbard v. Barcus, 38 Md. 174.

To the same effect is the decision in Hancocks v. Demeric, L. R. 3 C. P. Div. 147, etc.

That case arose under the Statute, 33 and 34 Victoria, ch. 93, sec. 1, (the married woman's property Act, 1870,) which declared that any earnings, wages and property acquired by a married woman in any employment carried on separately from her husband, should be deemed property settled to her separate use, independent of her husband.

In a suit brought by creditors to subject property acquired under this section, to the payment of the married woman's debts incurred in the course of her employment, it was held, that the husband must be joined as co-defendant.

The reasoning supporting this decision is analogous to that in Bridges v. McKenna, above cited.

In Anonymous, 6 Mod. 239, it was held, that covenant will lie against husband and wife upon a deed of demise to the wife, dum sola, whereby she covenanted that she would every year, during the term, plant so many oak plants on the premises.

It will be observed that the Act of 1867, sec. 2, authorizes a married woman "to bind herself as a feme sole;" but it would seem from principle and analogy that, being married, she should be sued as a feme sole would be sued after marriage, upon her contract made dum sola; namely, jointly with her husband.

In Brown v. Kemper, 27 Md. 666, this court held, that in an action of tort against husband and wife jointly for the tort of the wife, where judgment was recovered against them both, a fieri facias might properly issue and be levied on the separate property of the wife.

Here the husband was...