Mellott Ex Rel. Mellott v. Sullivan Ford Sales

236 A.2d 68, 1967 Me. LEXIS 260

• Court: Supreme Judicial Court of Maine
• Decided: December 14, 1967
• Status: Published

Opinions

WEATHERBEE, Justice.

On appeal. In an action in the District Court of District Three the plaintiff complains that while he was a minor of the age of nineteen years he purchased a truck from the defendant for which he paid the defendant $1,750.00 and that the truck was not a necessary. The plaintiff further complains that about two months later he elected to disaffirm the contract of purchase and returned the truck to the defendant demanding the return of the $1,750.00 which he had paid the defendant and that such demand was refused by the defendant. The defendant requested under M.R.C.P. 36(a) that the plaintiff admit that he is and was at the time of the purchase a married person and upon the plaintiff’s failure to answer this request — thus establishing the fact — the defendant, pursuant to M.R.C.P. 56, moved for a summary judgment in its favor on the ground that there was no genuine issue as to any material fact. Upon the plaintiff’s petition the matter was removed to the Superior Court of Penobscot County where the defendant’s request for summary judgment was granted and the plaintiff’s complaint dismissed by a Justice of the Superior Court. The plaintiff’s appeal presents the issue of whether a married male minor may disaffirm on the ground of infancy a contract of purchase for property which is not a necessary and obtain the return of the purchase money.

The defendant’s position is that 19 M.R. S.A. § 161 sufficiently removes the common law disability of a married male minor thereby enabling him to make a contract for purchase which is binding upon him. Section 161 reads as follows:

“A married person, widow or widower of any age may own in his or her own right real and personal estate acquired by descent, gift or purchase; and may manage, sell, mortgage, convey and devise the same by will without the joinder or assent of husband or wife; but such conveyance without the joinder or assent of the husband or wife shall not bar his or her right and interest by descent in the estate so conveyed. Real estate directly conveyed to a wife by her husband cannot be conveyed by her without the join-der of her husband, except real estate conveyed to her as security or in payment of a bona fide debt actually due to her from her husband. When payment was made for property conveyed to her from the property of her husband or it was conveyed by him to her without a valuable consideration, it may be taken as the property of her husband to pay his debts contracted before such purchase.”

The interpretation of this statute, as it applies to a married male minor, requires an examination of the history of the statutory enactments having to do with the removal of common law disabilities. The common law sought to protect the minor from the making of improvident contracts during his infancy by permitting him to rescind or disaffirm such contracts unless the articles sold to him were necessaries — the term necessaries meaning “those things useful, suitable, and necessary for the minor’s support, use, and comfort, * * * limited in its inclusion to articles of personal use necessary for the support of the body and improvement of the mind of the infant * * Utterstrom v. Myron D. Kidder, Inc., 124 Me. 10, 12, 124 A. 725 (1924). Persons engaged in selling to a minor did so at the risk that the sale might be disaf-firmed by the minor unless that person could prove that the articles furnished to the minor were in the class of necessaries. Whitman v. Allen, 123 Me. 1, 121 A. 160, 36 A.L.R. 776 (1923); Spaulding v. New England Furniture Co., 154 Me. 330, 147 A.2d 916 (1959); Utterstrom v. Myron D. Kidder, Inc., supra.

In 1845, the Legislature enacted into law P.L.1845, Chap. 166, which restated the common law status of minors in this field and added the principle of ratification in writing. Chapter 166, which follows, has remained substantially in this form to this time.

“No action that may be brought after the passage of this act, shall be maintained against any person upon a contract made while a minor, unless the same is ratified in writing, signed by the party to be charged by said contract, after arriving at the age of twenty-one years, or by some person thereto by him lawfully authorized; provided that this act shall not apply to, or affect any contract made by a minor for necessaries, or to contracts for real estate of which a minor has received and retained the title.”

Such was the state of the law in Maine until the middle of the nineteenth century when the first change in the minor’s contractual status came as the result of developments in the rights of married women.

In the eyes of the common law upon marriage a husband and wife became one person and that person was the husband. A married woman of any age was held incapable of entering into binding contractual relations and of acquiring or disposing of property. Upon marriage her husband took over all her personal property and the use of her real estate for his life and became responsible for her support, her debts and her torts. The courts of equity first recognized the need of a wife to have a separate estate in some instances and later a series of legislative actions beginning in 1821 extended the wife’s powers. The purpose was to more fully insure the maintenance of the married woman and the availability of her property for that purpose, if necessary. Haggett v. Hurley, 91 Me. 542, 40 A. 561, 41 L.R.A. 362 (1898); Uhl v. Oakdale Auto Co., 157 Me. 263, 170 A.2d 914 (1963).

P.L.1821, Chap. 57, § 9 empowered the courts to authorize the wife to make contracts and sue in her own name during the time in which she was abandoned by her husband. R.S.1841, Chap. 87, § 29 extended this power to the wife whose husband was in the state prison.

In 1844 the Legislature for the first time permitted all married women to own and hold property in their own names by enacting Chap. 117, § 1, which read:

“Any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase or distribution, in her own name, and as of her own property; provided, it shall be made to appear by such married woman, in any issue touching the validity of her title, that the same does not in any way come from the husband after coverture.”

Our court was called upon to interpret this statute in the case of Howe v. Wildes, 34 Me. 566 (1852). This case is the first of a series of decisions of this court in which the statutory relaxation of the common law disabilities of married women and minors was rigidly construed by the court under the common law rule that statutes in derogation of the common law must have strict construction. There, a married woman tenant had given promissory notes in payment for real estate which she was buying. The demandants contended that the notes of a married woman were void and that therefore they were entitled to possession of the property. The tenant argued that since P.L.1844, Chap. 117, § 1 authorized married women to become seized and possessed of real estate by purchase, it necessarily by implication authorized such women to enter into contract to buy such property, contending that the word “purchase” was intended to refer to property which had been bought. The court noted that the statute, being in derogation of the common law, could not be extended by implication beyond its express provision and rejected the tenant’s contention and found the notes to be void and no consideration for the alleged sale. The court held that the Legislature had used the word “purchase” in its common law technical meaning which signified the acquisition of property in one of six ways — by deed, devise, execution, prescription, possession or occupancy, or by escheat — and not with the intention of extending the married woman’s powers to include contracting to buy property.

The word “purchase” has continued in this section of the statute to this date, and neither the Legislature nor the courts have extended the limitation on the meaning placed there by Howe.

The Legislature again altered the status of a married woman in 1852 when it enacted a. law giving the married woman the right to dispose of property which had been acquired in the manner enumerated in P.L.1844, Chap. 117, i. e. “by direct bequest, demise, gift, purchase or distribution * * P.L.1852, Chap. 227, § 1, reads as follows:

“Sec. 1. Any married woman who is or may be seized and possessed of property, real or personal, as provided for in the acts to which this is additional shall have power to lease, sell, convey and dispose of the same, and to execute all papers necessary thereto in her own name, as if she were unmarried, and no action shall be maintained by the husband of any such married woman for the possession or value of any property held or disposed of her by her in manner aforesaid.” (Emphasis added.)

This section was the first to give a married woman the power to dispose of property which the 1844 law had authorized her to hold. It should be noticed that while the Legislature was removing some of the disabilities of coverture, it did not, specifically at least, remove the disability of infancy which still may have attached to the situation of a married female minor, but some two months later the same Legislature used clear and unambiguous language in giving married female minors the same status as to property that their married adult sisters had been given.

P.L.1852, Chap. 291, § 3, provides:

“Any married woman under the age of twenty-one years shall have, and may exercise, all the rights, privileges and powers enumerated in the several acts now in force, securing to married women their rights in property in the same manner and with the same effect, as though she were of full age.” (Emphasis added.)

It seems clear that the Legislature had concluded that the common law disabilities of coverture were as burdensome to the married female minor as they were to her married adult sister and that if she owned property she might have equal need to dispose of it for her maintenance and that of her children.

Since the married female minor’s situation was considered in conjunction with that of a married female adult, she had at this point received an authority to lease, sell, convey and dispose of her property which had not been given to a married male minor.

In 1857 the Legislature in its revision of statutes combined Chapters 227 and 291 into R.S.1857, Chap. 61, § 1, which read:

“A married woman, of any age, may own in her own right, real and personal estate acquired by descent, gift, or purchase; and may manage, sell, convey, and devise * * (Emphasis added.)

This court in Duren v. Getchell, 55 Me. 241, 248 (1867), in discussing the construction of this statute concluded, although in dicta, that the addition of the word “manage” did not give a married woman power to contract generally but only in relation to managing her property.

In 1866 the Legislature gave the married woman the broadest of contractual powers. P.L.1866, Chap. 52, reads:

“The contracts of any married woman, made for any lawful purpose, shall be valid and binding, and may be enforced in the same manner as if she were sole; * * * >!

In 1890 our court was required to construe this statute in Cummings v. Everett, 82 Me. 260, 19 A. 456 (1890), a case involving the validity of a promissory note signed by a married female minor defendant. Again, the court declined to extend abrogation of the common law beyond the clear and positive language of the statute and concluded that while the statute removed the disability of coverture, its language was not clear and direct enough to show the intent to remove the disability of infancy as well. The court pointed out that the words “married woman” could include women who until the passage of the statute might be under several disabilities — the disability of coverture, the disability of infancy and the disability of being non compos mentis. The court mentioned this to make clear its finding that the law did not intend to remove every disability that “any married woman” might have and felt constrained to hold that the only disability removed by this statute was the disability of coverture and held that “any married woman” meant any married woman of lawful age. Thus in 1890 the court refused to interpret this statute so as to make a married female minor liable on all her contracts as a married female adult thereby came to be.

The question of the married female minor’s rights was next considered by our court in Fields v. Mitchell, 112 Me. 368, 92 A. 293 (1914), where the court held that a married female minor could not rescind her contract to sell real estate. The court discussed the Cummings decision of twenty-four years earlier and remarked that the 1890 court had apparently overlooked the second 1852 statute (P.L.1852, Chap. 291, § 3) which gave married female minors the same rights in their property that the statutes then in force gave to the married female adult. The court suggested in dicta that if the court in Cummings had considered this second statute it might have held the minor defendant liable on her promissory note. The Fields court went on to add in dicta that “ * * * the opinion in that case must be modified so far as is necessary to be consistent with the principle here announced.”

This language is perplexing in as much as the principle announced in Fields — that is, that a married female minor could not rescind for infancy her contract to sell real estate — in no way made necessary the modification of the Cummings decision. The clear and direct language of P.L.1852, Chap. 227, § 1, gave the married female adult the right to sell her property and P.L. 1852, Chap. 291, § 3, extended this power to the married female minor. But the latter statute did not, as Fields suggests in dicta, remove all the disabilities of a married female minor. It gave her only such rights in property as a married adult woman had been given at that time by the statutes then in force — which was the right to hold property and manage, sell, convey and dispose of it. No power had been given to a married adult woman to make a binding contract to buy property at that time. Such power was given her later, by P.L.1866, Chap. 52, which made all her contracts binding but the holding in Cummings that the married female minor was not included in the language of that statute has never been overruled.

At this point in the development of the legislative and judicial process of enlarging the powers of married minors — that is, in 1914 — we find that the married female minor could hold property in her own name and could make binding contracts in managing and selling it but the married male minor could not make any binding contract except for necessaries. The clear and direct language of R.S.1857, Chap. 61, § 1, had given her greater power and responsibilities as to property than he possessed, but it had not removed all of her disabilities and she still could not make a binding contract to buy property.

The status of male and female minors remained unchanged by either statutory amendment or judicial interpretation until 1951 when the language of R.S.1857, Chap. 61, § 1, was changed by amending the words “A married woman of any age may own in her own right real and personal estate acquired by descent, gift or purchase; and may manage, sell, convey and devise the same by will * * * ” to read “A married person, widow or widower, of any age, may own in his or her own right real and personal estate acquired by descent, gift or purchase; and may manage, sell, convey and devise the same by will * * P.L.1951, Chap. 375, § 2. (Emphasis added)

Our problem is the construction of Section 2 which is now 19 M.R.S.A. § 161. Did the Legislature by this amendment intend to remove the common law right of a married male minor to rescind a contract to purchase property during his infancy or during a reasonable time thereafter?

The contractual powers of the married male minor have been considered by this court twice since the passage of P.L.1951, Chap. 375, § 2. In 1959 in Spaulding v. New England Furniture Co., 154 Me. 330, 147 A.2d 916 (1959), the plaintiff, a married male minor, sought to disaffirm his execu-tory contract to purchase certain articles of furniture. The defendant did not contend that P.L.1951, Chap. 375, § 2 affected the married male minor’s ability to disaffirm his contract to buy personal property, and the only issue before the court was the acceptance of the report of the referee which found that the particular articles in question were not necessaries. However, if, as the defendant contends here, P.L.1951, Chap. 375, § 2 gave the married male minor the power to make a binding contract to purchase, this issue would have been moot.

In 1961, in Uhl v. Oakdale Auto Co., supra, the plaintiff, a married male minor, bought an Oldsmobile automobile from the defendant, turning in a Ford as part of the purchase price. The Oldsmobile was later repossessed and the plaintiff sought to rescind the agreement and to recover the Ford which he had sold to the defendant. The court agreed with the defendant that P.L.1951, Chap. 375, § 2 (now 19 M.R.S.A. § 161) removed from the married male minor the common law right to disaffirm a sale of property in an action brought by him. The court in Uhl cautioned against too broad an interpretation of its decision, saying:

“R.S.1954, Chap. 166, Sec. 35, was in derogation of the common law and must be strictly construed. The legislation did not purport to remove all disabilities of a married male under twenty-one years of age. We are concerned solely with the question of whether or not the plaintiff, in view of this legislation, can, on the ground of infancy, legally disaffirm the sale of personal property made by him to the defendant.”

The language describing the powers given by P.L.1951, Chap. 375, § 2 is essentially the same as was used in P.L. 1852, Chap. 227, § 1—that is, the right to own property and to dispose of it. Howe held that this gave married females no power to buy property and this conclusion stands unchanged by either statute or judicial decision. This right to own property and to dispose of it, as her married adult sister could do, was all that was given to the married female minor by P.L.1852, Chap. 291, § 3. (We are considering her rights here only to help us understand the legislative intent as to the statute now in issue. However, in view of the construction which Cummings gave to P.L.1866, Chap. 52, now 19 M.R.S.A. § 164, which construction the Legislature has not seen fit to change, we do not understand that any other statute has given her any more extensive contractual powers than these.) When the words “married woman” were changed to “married person” in 1951, the married male minor acquired the same power that the married female minor had earlier received in the same statute — which was only the right to own property and to manage, sell, mortgage, convey and devise it.

While P.L.1951, Chap. 375, § 2 took from the married male minor his common law power to rescind contracts to sell his property, there is a complete absence of clear and direct language in the statute indicating any intention to empower him to make binding contracts to purchase property. While it may seem incongruous that a married minor may make a binding contract to sell property but not to buy it, we know that the Legislature is still aware of the wisdom of protecting minors from improvident agreements that may result from immaturity and inexperience. P.L.1845, Chap. 166, has never been repealed and now, as 33 M.R.S.A. § 52, it still prohibits actions against a minor on his contracts (with some exceptions in relation to education) unless he ratifies them in writing after he reaches twenty-one. The Legislature, while still unwilling to permit him to bind himself with possibly unwise agreements to buy property, apparently realized that he may have acquired property in a manner other than by contract and that he should be able to sell or mortgage it if the maintenance of his family requires it.

We feel that when social and economic changes require a further relaxation of common law limitations upon the contractual responsibility of minors, any modification of such a basic principle must come from the clearly expressed intentions of the Legislature.

We hold that the statute does not remove the common law right of a married male minor to rescind the purchase of property, except for necessaries, on the grounds of infancy.

The entry will be: Appeal sustained.