A woman's right of dower being a valuable right which she cannot
be compelled to resign, and which the law protects very carefully
from her husband's control, her release of it is a good
consideration for a promise to pay money to her separate use.
Accordingly, where a husband and another, owning a piece of land in
the District of Columbia which they wanted to sell, applied to the
wife (all parties being residents of the District) to release her
dower, which she did in consideration of the husband's and the
other's executing to her directly a joint promissory note for a sum
of money.
Held:
1st. That in virtue of the Act of 10th April, 1869, 14 Stat. at
Large 45, regulating the rights of property of married women in the
District of Columbia, by which it is enacted
"That the right of a married woman to any property belonging to
her at the time of marriage or acquired during marriage in any
other way than by gift or conveyance from her husband shall be as
absolute as if she were a
feme sole, and not subject to
the disposal of her husband or liable for his debts, and that she
may convey or bequeath the same as if she were unmarried; also that
any married woman may contract and sue and be sued in her own name
in all matters having relation to her sole and separate property in
the same manner as if she were unmarried."
And in virtue of the further act to amend the law of the
District of Columbia in relation
Page 85 U. S. 142
to judicial proceedings therein of February 22, 1867, 14
id. 405, by the twentieth section of which it is
enacted
"That where money is payable by two or more persons jointly or
severally, one action may be sustained and judgment recovered
against all or any of said parties by whom the money is payable, at
the option of the plaintiff,"
she could sue the joint obligor of her husband at law.
2d. That though by the laws of the District as construed, the
wife might in fact, under the special circumstances of the case,
really have had no right of dower, still if her release was deemed
requisite to secure the sale of the property, such release was a
good consideration for the promise to pay her money.
James Sykes and H. A. Chadwick (the latter a married man, his
wife being Eleanor Chadwick), owning a piece of real estate in the
City of Washington, and wishing to borrow money on it, conveyed it
by deed of trust -- that is to say, mortgaged it -- to Hyde to
secure a sum which he lent them, Mrs. Chadwick joining in the
mortgage, and her acknowledgment of the same being taken separately
and apart from her husband in the way prescribed by the laws of the
District in order to pass the estate of a
feme covert.
Desiring afterwards to sell the same property (the mortgage
being still unpaid), Sykes and Chadwick requested Mrs. Chadwick to
join them in a deed to the purchaser for the purpose of releasing
her right of dower.
She did so, and in consideration therefor they gave her a note
in this form:
"$5000] WASHINGTON, October 15, 1869"
"Six months after date, we promise to pay to the order Eleanor
Chadwick five thousand dollars, value received."
"JAMES SYKES"
"H. A. CHADWICK."
At the time when this note was thus given, there prevailed in
the District an Act of Congress passed April 10, 1869, [
Footnote 1] in these words:
Page 85 U. S. 143
"
An Act regulating the Rights of Property of Married
Women"
"
in the District of Columbia"
"SEC. 1. The right of any married woman to any property,
personal or real, belonging to her at the time of her marriage or
acquired during marriage in any other way than by gift or
conveyance from her husband shall be as absolute as if she were
feme sole, and shall not be subject to the disposal of her
husband nor liable for his debts, but such married woman may
convey, devise, and bequeath the same or any interest therein in
the same manner and with like effect as if she were unmarried."
"SEC. 2. Any married woman may contract and sue and be sued in
her own name in all matters having relation to her sole and
separate property in the same manner as if she were unmarried, but
neither her husband nor his property shall be bound by any such
contract, nor liable for any recovery against her in any such suit;
but judgment may be enforced by execution against her sole and
separate property as if she were sole."
Also another Act of February 22, 1867, [
Footnote 2] in these words:
"
An Act to amend the law of the District of Columbia in
relation"
"
to Judicial Proceedings therein"
"SEC. 20. Where money is payable by two or more persons jointly
or severally, as by joint obligors, covenantors, makers, drawers,
or endorsers, one action may be sustained and judgment recovered
against all
or any of said parties by whom the money is
payable, at the option of the plaintiff."
In this state of facts and of statutes, the note to Mrs.
Chadwick not being paid, she brought suit upon it against Sykes
alone at law in the court below, a court having jurisdiction both
in equity and at common law.
The court below sustained the suit, and from its judgment in the
matter this writ of error was taken.
Page 85 U. S. 144
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The question is whether the note on which this suit is brought
against Sykes is valid as against the defendant so as to sustain
the present action. In aid of the plaintiff's case, certain acts of
Congress relating to the District of Columbia have been referred
to. First, an act regulating the
Page 85 U. S. 145
rights of property of married women in the District of Columbia,
passed April 10, 1869, by which it is enacted in substance that the
right of a married woman to any property belonging to her at the
time of marriage or acquired during marriage in any other way than
by gift or conveyance from her husband shall be as absolute as if
she were a
feme sole, and not subject to the disposal of
her husband or liable for his debts, and she may convey or bequeath
the same as if she were unmarried. Also that any married woman may
contract and sue and be sued in her own name in all matters having
relation to her sole and separate property in the same manner as if
she were unmarried. Secondly, an act to amend the law of the
District of Columbia in relation to judicial proceedings therein,
passed February 22, 1867, by the twentieth section of which it is
enacted that where money is payable by two or more persons jointly
or severally, as by joint obligors, covenantors, makers, drawers,
or endorsers, one action may be sustained and judgment recovered
against all or any of said parties by whom the money is payable, at
the option of the plaintiff.
With regard to the first-mentioned statute, relating to a
married woman's property possessed at the time of marriage or
acquired afterwards, we think it clear that it does not refer to
her contingent interest in her husband's estate, but to property
owned by or coming to her independent of her husband -- property
which, but for the statute, he would acquire an interest in by
right of marriage. The sole object of the statute was to prevent
his acquiring such interest in her property. Her right of dower in
his property stands as it did before the statute. She cannot
dispose of it independently of her husband; nor can she, without
his consent, separate it from his estate in the land.
Still her right of dower is a valuable interest, which she
cannot be compelled to resign and which the law very carefully
protects from the control of her husband. When she does part with
it, an officer must examine her apart from her husband to ascertain
whether she does it freely and voluntarily. And whilst this
interest is a valuable right of the
Page 85 U. S. 146
wife, it is a corresponding encumbrance upon the land to which
it attaches. By the aid of modern science, it is capable of a
definite valuation. Hence it is easy to ascertain whether an undue
valuation is placed upon it. In this case, no suggestion of that
kind is made. For all that appears, the transaction was made in
good faith. At all events, the parties to it cannot allege the
contrary.
The wife's interest being valuable, and one that may be disposed
of by her with her husband's concurrence, the question arises
whether her release of her right of dower is a good consideration
for a separate provision for her benefit, or of a promise to pay
money to her separate use. And of this we have no doubt. The
question would hardly have been raised had the arrangement been
made with the purchaser instead of the vendors of the land, one of
whom was the plaintiff's husband. But arrangements of this kind
made with the husband are sustained in equity by very high
authority. In
Garlick v. Strong, [
Footnote 3] where a husband who was about to sell his
estate agreed with his wife that if she would release her dower she
should share a portion of the purchase money to her separate use,
it was held by Chancellor Walworth that the agreement was valid,
and that a note given by the purchaser to a trustee for the wife
for the amount allowed to her in the arrangement became her
separate property, and though the money due on the note was paid
and invested by the trustee in a bond in the wife's name, which
bond was afterwards disposed of by the husband without her consent,
the fund was followed into the hands of the party receiving it with
notice, and decreed to belong to the wife. The chancellor said:
"It is well settled that a postnuptial agreement between the
husband and wife by which property is set apart to her separate use
will be sustained in equity though void at law. The relinquishment
of the dower in this case was a sufficient consideration to support
this agreement on the part of the husband. Although as against
creditors whose debts existed at the time, post-nuptial
Page 85 U. S. 147
agreements will not be permitted to stand beyond the value of
the consideration, that principle cannot be applied to this case,
which appears to be an attempt on the part of these defendants to
defraud the wife of the moneys to which she is equitably entitled
under this agreement."
These views of the chancellor seem to us to be founded in
justice and good sense. The same principle was decided in Virginia
in the case of
Harvey v. Alexander, [
Footnote 4] and in
Quarles v. Lacy.
[
Footnote 5] In each of these
cases, property was conveyed to the separate use of the wife, by
the procurement of her husband, in consideration of releases of
dower made by her in his lands. It was held in the latter case that
such a transaction was good as against creditors to the extent of
the value of the dower released. Indeed, as far back as the time of
Chief Justice Hale, it was held that if a wife join in a fine so as
to relinquish her dower, it will be a good consideration for a
settlement. [
Footnote 6]
We may therefore regard the transaction under consideration as
valid and binding in equity both on the defendant and the husband
of the plaintiff. The note given to the plaintiff was the fruit of
this transaction. The transaction itself was a good and sufficient
consideration for note. The latter is her separate property, as
much so as an equal amount of money would have been if it had been
placed by the vendors to her credit in bank. She having performed
her part of the agreement, there became due to her so much money
for her separate use, and as her separate property. The note is no
part of the contract by which her dower was released. It is a mere
security given to her for the money growing due to her out of that
contract. Her husband and his co-partner became indebted to her,
and gave her this note as her separate property. Such a note must
be just as valid as if she had lent them the amount out of her
separate estate and taken their note as security for the payment
of
Page 85 U. S. 148
it. The transaction is virtually the same as if they had paid
her the money, and she had lent it to them on the note in
question.
The case may be shortly stated thus:
By the Act of 1869, the plaintiff, as a married woman, acquired
the capacity at law to receive property to her separate use, and
subject to her separate and exclusive control as if she were
unmarried, provided it does not come to her by gift or conveyance
from her husband -- by which is undoubtedly meant voluntary gift or
conveyance. Having this capacity, she did receive and acquire, for
a good and valid consideration moving from herself, the promissory
note in question.
This note, then, being her separate property, not acquired by
gift or conveyance from her husband in the sense in which the
statute uses those terms, she is entitled to the benefit of the
statute in reference to the exclusive possession and enjoyment of
the note, and to the exclusive right of suing upon it. As to it,
she is relieved from the incapacity which the common law imposed
upon her, and is as if she were unmarried. The technical reasons,
therefore, which, at the common law, rendered void a note or other
obligation made by the husband to the wife, no longer exist in this
case. And if there are still any such reasons which would compel
the plaintiff in enforcing the note as against her husband to seek
the aid of a court of equity, there are none to prevent her from
suing the defendant upon it in a court of law. The statute of 1867,
above referred to, enables the holder of a joint obligation to sue
either or any of the parties to it without suing the others. The
defendant, therefore, has no legal ground of defense to the action.
The note is founded upon a good and valid consideration. Whether a
right to sue the other maker of it exists or not is of no
consequence to the defendant. As to him, there can be no doubt that
the plaintiff is invested with all the capacities and rights which
are necessary to enable her to maintain an action at law on the
note.
It is contended, however, that prior to the sale of the
Page 85 U. S. 149
property and the giving of the note the plaintiff had joined the
defendant and her husband in a deed of trust for the same property,
given to secure the payment of a loan made by them, and that by
this outstanding deed of trust her right of dower was
extinguished.
If it be true, as contended for by counsel, and as the cases
seem to show, that in this District the antiquated rules on this
subject still prevail -- so as to bar a widow of al dower in an
equity of redemption -- if, instead of being a mere security for
money, a mortgage or deed of trust in nature of a mortgage,
transfers the legal estate so as to deprive the mortgagor of the
ownership of his property, yet the plaintiff would have been
reinvested with her right to demand dower in the land whenever the
purposes of the trust should be accomplished, and no purchaser
would deem it safe to take a conveyance of the equity of redemption
from the mortgagors without a release of her contingent right. And
whatever technical obstacles the trust deed may have raised against
her right to recover dower at law, in case of the death of her
husband, no one desiring to purchase the property would be willing
to incur the hazard of those obstacles being removed. At all
events, the defendant, when he was endeavoring to negotiate the
sale of his property, deemed it of sufficient importance to give
the note in question in consideration of the plaintiff's joining in
the deed and releasing any contingent right she might have. This
very act of hers may have been necessary, and we have a right to
infer that it was deemed important, to the closing up of the
transaction and securing the sale of the property. If any release
is deemed requisite to confirm the title of lands with which one
has been connected, though by a proper construction of the law he
has no interest in them whatever, still such release will be a good
consideration for a promise or for the payment of money.
Judgment affirmed.
[
Footnote 1]
16 Stat. at Large 45.
[
Footnote 2]
14 Stat. at Large 405.
[
Footnote 3]
3 Paige 440.
[
Footnote 4]
1 Randolph 219.
[
Footnote 5]
4 Munford 251.
[
Footnote 6]
Lavender v. Blackstone, 2 Levinz 147; Atherley 161;
and see 2 Kent 166; 2 Scribner on Dower, p. 6, ยง 6;
Bank of the United States
v. Lee, 13 Pet. 110;
Niemcewitz v. Gahn, 3
Paige 614.
MR. JUSTICE MILLER, dissenting:
This is a common law action brought on a promissory
Page 85 U. S. 150
note on the law side of a court which possesses and exercises in
separate forums both common law and equity jurisdiction.
The District of Columbia, for which that court sits and whose
laws it administers, has preserved the principles of the common law
less affected by statutes than any part of America, and perhaps
less than England herself.
That a married woman could make no express contract, except as
she joined her husband with her, by that law is, I think, too clear
for argument. It is therefore a waste of learning to inquire under
what circumstances she could contract with her husband. The
plaintiff in this case could make no lawful contract with Sykes
unless under very special circumstances.
The act of Congress relied on, and which is deemed necessary to
the validity of the note, so far removed this general disability as
to enable her to make contracts in respect to her separate
property, and I agree to the definition of the Court as to what is
separate property within the meaning of that act. Her dower
interest in her husband's land is not separate property. This is
conceded.
On the other hand, it is undoubtedly true that a release of
dower is a good consideration for a promise, whether in writing or
otherwise, and the promise would be valid if made to a person
capable of contracting. But this leaves untouched the question of
plaintiff's capacity to make the contract.
The release of dower and the agreement to pay a certain sum for
it was one contract. The execution of the deed of release and of
the notes were each the consideration for the other. I cannot see
the force of the dialectics by which, after the contract is made,
the note given as evidence of one part of it is called the separate
property of the wife, concerning which the contract was made. That
is to say, this contract was made in reference to the paper, and it
constitutes the material part of the note, and, this being her
separate property, enables her to make the contract by which Sykes
became her debtor.
But suppose no note had been taken, the promise would
Page 85 U. S. 151
have been just as good as it is with it. Where would then have
been her separate property, about which she was authorized to
contract?
It is clear to me that to enable a married woman to contract,
she must have and own separate property at the time of making the
contract, and that to make that contract valid, it must relate to
that property. If the proposition on which this case is rested be
sound, the wife need have no separate property to enable her to
contract; but she can make any agreement by which she is to receive
something, put it in writing, call the paper which evidences the
agreement her separate property, and the thing is done.
As to the invasions which courts of equity have made on the
rigid and unjust rules of the common law on this subject, they are
wise and beneficent, and they were made because the common law
courts afford no remedy, and if this were a suit in equity by Mrs.
Chadwick to recover the value of her dower after she had legally
conveyed it, I would gladly enforce her right. But that is not the
case, and I do not think the courts have an unlimited right to
overturn the clearest principles of the common law because
legislation has lagged behind the progress of the age in the
jurisprudence which governs the rights of married women.
I regret to have to dissent, but I think the precedent of making
laws in this manner too pernicious to be acquiesced in by my
silence.
