Barton v. Barton

32 Md. 214, 1870 Md. LEXIS 26

• Court: Court of Appeals of Maryland
• Decided: March 4, 1870
• Status: Published

Opinion

Grason, J.,

delivered the opinion of the Court.

The question presented by this appeal for our determination is, whether an action at law can be maintained by the widow of a deceased party, against his executors, for the recovery of money loaned by her to her husband before marriage, and for the value of securities belonging to her, of her sole and separate estate, and loaned to the husband during the marriage, upon his express promise to re-pay her. There is no controversy in regard to the facts of the case, and the only defence to the suit which was attempted to be made, was one of law, raised by the three rejected prayers of the appellants, that upon the pleadings and evidence, the appellee was not entitled to recover in this form of action. The marriage between William A. and Caroline Barton took place after the adoption of the Code, and the first, second and third sections of the 45th Article of the Code provide that a married wminan shall hold, to her sole and separate use, all the property, real and personal, which may belong to her at the time of the marriage, or which she may thereafter acquire by gift, grant, devise, bequest, or in a course of distribution, with the power of devising the same as fully as If she were a féme sole. It is not necessary for her to have a trustee to secure to her the sole and separate use of her property, but the legal title thereto is, by law, vested in her. The fourth section confers upon a married woman, having no trustee, the right to sue, by next friend, in a Court of Law or Equity, in all cases for .the recovery, or security, or protection of her property as fully as if she were a feme sole. There is no doubt of the right of a married woman to sue, by her next friend, either at law or equity, in any matter perfectly cognizable in such courts, any stranger for the recovery, security or protection of her property. Bridges & Woods vs. McKenna, 14 Md., 260. Rut it has been urged in argument that she cannot sue the husband at law, and that, after his death, no action will lie against his' executors or administrators, unless it could have been maintained against him during his life-time. It is .true that public policy, originating in the delicate relation existing between husband and wife, forbids a wife from maintaining an action at law against her husband during the coverture, and her only remedy against him is by a proceeding in equity. But the wife, where she has no trustee, being vested, under the Code, with the legal title to her separate estate, and the executors or administrators of the husband, standing in the position of strangers to her, we cannot discover that either sound reason, public policy, or any principle of law, would prevent her from maintaining an action at law against his executors or administrators for the recovery of debts due by him to her at the time of his death, and growing out of contracts concerning her separate estate, and entered into during his lifetime. But it was also contended that a debt due by the husband to the wife for money lent before marriage, became! extinguished by the marriage. At common law, such would have been the result. But the Code has changed the law in this respect, and by enacting that a woman shall hold to her sole and separate use all the property belonging to her at the time of the marriage, has the effect of preventing such a debt from being extinguished by the marriage. It was also contended that the dioses in action, belonging to the wife, are not property within the meaning of the Code, and that, therefore, no power is conferred upon her to maintain an action for the recovery of their value. We have no doubt that judgments, notes, or other securities and accounts, taken by the wife upon the sale, or other disposition of her separate estate, or for services rendered, or work done by her, and all choses in action held by her at the time of her marriage or acquired subsequently, are property within the meaning of the Code, for the recovery, security or protection of which she can maintain an action.

(Decided 4th March, 1870.)

As the judgment of the Court below will be affirmed, it is unnecessary to notice the exception taken by the appellee to the granting of the fourth prayer of the appellants, no appeal having been taken by her.

Judgment affirmed.