Chapman v. Kellogg

102 Mass. 246

Opinion

Chapman, C. J.

The note in' suit was originally valid, having been given to the plaintiff by the defendant while she was sole. When she married Kellogg, it remained valid against her; but under our present statute her husband did not become liable to pay it. Gen. Sts.' c. 108, § 8.

According to the plaintiff’s testimony, he sold it to her husband, and indorsed it to him, and thus the husband acquired the legal as well as the equitable title to it. The agreement, that the plaintiff should take it back in case of any difficulty between the defendant and her husband, did not prevent the title from vesting absolutely in the husband, for the husband was under no obligation to return it, except at his own option.

■ The question presented is, whether this title in the husband operated to extinguish the contract. At common law, there can be no doubt that it would have done so. One of the reasons for the extinguishment would be, that the husband became liable by the marriage for its payment. The statute has taken this ground away, by releasing the husband from his liability for his wife’s de'bts. But another ground was, that he could not maintain an action against his wife on a contract, because there could be no valid contract between them. This principle has not been changed by statute. A contract between husband and wife is still a nullity. Lord v. Parker, 3 Allen, 127. Edwards v. Stevens, Ib. 315. Ingham v. White, 4 Allen, 412, 415. He cannot even indorse a note to her. Gay v. Kingsley, 11 Allen, 345.

This note then, when it passed into the hands of the defendant’s husband, he having the legal as well as equitable title to it, became a nullity. And, it having been once extinguished, he had no power to revive it against her by retransferring it to the plaintiff. The question here decided is different from that decided in Bemis v. Call, 10 Allen, 512.

Exceptions sustained.