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Lindley and Another v. Cross and Wife.

friend, except she be under the age of twenty-one years.” 2 G. & H. 41 sec. 8.

If a married woman can sue or be sued alone, in respect to her separate property, it seems to be fair to allow her the power of contracting for such aid as she may require in conducting the litigation. It seems clear that the legislature intended to confer upon her the full power of enjoyment, with a restriction on her power to incumber or alienate. Whatever power, then, is incident to a complete holding would seem to be conferred upon her by a fair construction of the statute.

If the improvement in question was necessary and proper for a full and complete enjoyment, then the wife could charge her separate property with the debts created in mak

ing it.

The first paragraph, however, is bad, for the want of averment showing that the dwelling house was necessary and proper for a full and complete enjoyment by the wife of the lots in question.

The question of the power of a married woman to make new improvements, being a power liable to abuse, must be under the control of the court trying the case involving the liability of her separate property to answer for the debts created in making such improvements.

The lien of the mechanic or material-man is created by statute, and before either can avail himself of such a lien the statute must be complied with.

The notice charged in each paragraph of the complaint was insufficient to create the lien, and the court had no power to reform it.

The second paragraph is good. It shows a liability of the husband for the debt, and that the holding of the wife is in trust for her husband. Under the code, complete relief can be granted. A judgment may be obtained against the husband for the debt, and the lots in question subjected to the payment of the judgment.

Judgment reversed, with costs; cause remanded, with di

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O'Daily v. Morris.

rection to overrule the demurrer to the second paragraph
of the complaint, and for further proceedings.

F. T. Hord, for appellants.
W. f W. W. Herod, for appellees.

31 111 128 477

31 111 |156 571


MARRIED WOMAN.- Contract.–Our statutes do not change the rule of the com

mon law, so far as it applies to the contracts at large of a married woman, that she is incapable of binding herself by an executory contract, and that all such contracts made by her, whether in writing or by parol, are abso

lutely void at law. SAME.–Promissory Note.-A married woman carrying on a business in her

own name and living with her husband, whom by a written instrument she had made her agent to manage ber business, borrowed for her own use a sum of money, which was delivered to her personally, for which she and her husband executed a promissory note, the payee relying on her for its

payment. Held, in a suit on the note, after the woman had been divorced from her said

husband and while she was still unmarried, that she was not personally liable on the note.

APPEAL from the Tippecanoe Circuit Court.

ELLIOTT, C. J.-Morris sued Joanpa O'Daily, the appellant, and Jeremiah O'Daily, before a justice of the peace, on a promissory note for seventy dollars, executed by them on the 3d of August, 1860. Jeremiah made default. Joanna appeared and answered in three paragraphs:

1. The general denial.

2. That she was a married woman when the note was executed, and it was therefore void.

3. That she was a inarried woman at the time of making the note, and it was not given for her separate debt.

On the hearing the justice rendered judgment against her, and she appealed to the circuit court, where the cause was


O'Daily v. Morris.

tried by the court without a jury, which resulted in a finding and judgment against the appellant for the amount of the note and interest. The facts upon which the finding and judgment were had appear in a special finding of the court, and are as follows: In 1858, Joanna was a married woman, and the lessee in her own right of a house and lot in Lafayette, in which she carried on a grocery and provision store, in her own name, and by a written instrument she made her husband her agent to manage her business; that on the 3d day of August, 1860, being still married and living with her husband and carrying on said business, she applied to the plaintiff to borrow seventy dollars, for her own use. The plaintiff loaned her the amount and took the note in suit therefor, relying on her for its payment. The money was handed to, and received by, Joanna personally. There was no evidence as to how the money was used. In 1865, Joanna was duly divorced from her husband and has since remained sole and unmarried.

We are not favored with a brief in behalf of the appellee, and are not aware, therefore, of the grounds on which he bases the right to recover against the appellant.

It is a rule of the common law, too familiar and well settled to need the citation of authorities, that a feme covert is incapable of binding herself by an executory contract, and that all such contracts made by a married woman, whether in writing or by parol, are absolutely void at law. There is nothing in the legislation of this state in relation to married women changing this rule of the common law, at least so far as it applies to such contracts at large. It is not sought in this case to render the separate estate of the wife liable for a debt created in reference to her separate estate and for its benefit, and we are not therefore called upon to discuss the doctrine on that subject, but may be permitted to refer to an elaborate discussion of it in Yale v. Dederer, 22 N. Y. 450. See, also, Kantrowitz v. Prather, at this term, p. 92, ante.

This is simply a suit at law upon a promissory note executed by a married woman, in which a personal judgment

Montgomery and Wife v. Sprankle and Another.

is rendered against her. The note being void, it follows that the judgment upon it is erroneous and must be re-versed.

Judgment reversed, with costs, and the cause remanded. for a new trial.

H. W. Chase and J. A. Wilstach, for appellant..
W. C. Wilson, for appellee.

MONTGOMERY and Wife v. SPRANKLE and Another.

MARRIED WOMAN.Partner.- Separate Property.-A married woman cannot:

bind herself as the partner of her husband; nor do the facts that she holds : herself out as such partner and that her property gives credit to the pre-tended firm charge her property with an indebtedness contracted by such. firm in the course of trade.

APPEAL from the Randolph Common Pleas.

GREGORY, J.-The appellees filed their complaint in the court below against the appellants, charging an indebtedness from the latter to the former for commissions and mon-eys advanced in the course of trade. It is sought to charge real estate in the name of the wife for this indebtedness, on the ground that she was a partner in trade with her husband, and that she had held herself out as such, thereby giving credit to the firm.

The court found as follows: “That the defendants consigned to the plaintiff's twenty-nine thousand five hundred. and thirty and 14 bushels of wheat, which the plaintiffs sold for fifty-three thousand three hundred and ninety-three dollars and eighty-nine cents; that the net proceeds of said sales,. after deducting charges for insurance, freight, elevating,. storage, inspection, government tax, and commission, wasforty-six thousand five hundred and seventy-three dollars:


Montgomery and Wife v. Sprankle and Another.

and fifty-three cents; that plaintiff's made advances to defendants and paid drafts for defendants' use, amounting to fifty-three thousand six hundred and ninety-six dollars and eighty-six cents; that the consignments were general; that there was no agreement to hold wheat until defendants ordered it sold; that plaintiff's sold none of defendants' wheat contrary to their orders; that plaintiffs are entitled to damages for the excess of advances made by them to defendants over net proceeds of sales of wheat; that the parties agreed that interest should be allowed plaintiff's on .such advances; that such excess of advances over proceeds of sales until July 14th, 1865, amounted to six thousand two hundred and twenty-three dollars and thirty-three cents; that defendants were doing business as partners, under the style of Montgomery & Co., during the whole period in which the dealings between the parties were had which are involved in this action; that Emily J. Montgomery is a married woman; that all the capital belonging to defendants that was employed in the business was claimed to be the separate property of said Emily J. Montgomery; that:the real estate described in the complaint was purchased and improved with means and funds in the control of Montgomery & Co.; that this real estate and other property claimed by Emily J. Montgomery and used and controlled by the said firm of Montgomery & Co. gave credit to defendants with plaintiffs, and the business between the parties was engaged in by defendants, and the liabilities to plaintiffs were incurred, for the purpose of benefiting the property claimed as the separate estate of Emily J. Montgomery; and that the said James Montgonery has no property subject to execution. The general finding of the court, therefore, is for the plaintiff's, and their damages are assessed at seven thousand and fifteen dollars and eighty-four cents, and that the real estate described in the complaint, with the other property of Emily J. Montgomery, is liable for the payment and discharge of said damages and costs of suit.'

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