Reis v. Lawrence.

lished by well adjudicated cases in the courts of the different States of this Union, that not only where the marriage relation is suspended by act of law, but where the husband is a foreigner, residing permanently abroad, or where, by his cruelty, a separation is forced, and the wife removes to another State, and maintains herself as a single woman in either of these cases, whether the wife have or have not a separate allowance, she is entitled to sue and be sued as a feme sole. And this right extends to whatever contract she may make, and to whatever property or interest she may have.'

"In Bean v. Morgan, 4 McCord, 148, it was held that if the husband departs the State, with intent to reside abroad, and without the intention of returning, his wife becomes competent to contract and to sue and be sued as a feme sole.

"In Gregory v. Pierce, 4 Metc. 478, the court say: The principle is now to be considered as established in this State, as a necessary exception to the rule of the common law, placing married women under disability to contract or maintain a suit, that where the husband was never within the Commonwealth, or has gone beyond its jurisdiction - has wholly renounced his marital rights and duties, and deserted his wife she may make and take contracts, sue and be sued, in her own name, as a feme sole. It must be a voluntary separation, embracing both fact and intent of the husband to renounce, de facto, and as far as he can do it, the marital relation, and leave his wife to act as a feme sole.

“It is true that the English rule, prior to recent statutes, limits this exception to cases of divorce a vinculo, or of civil death, as where the husband has abjured the realm, been exiled or transported for crime, or where he was a foreigner at the time of marriage, and continued to reside abroad; but the whole current of American authority, as well as recent legislation in this country and England, is to the effect that where the husband abandons his wife permanently and neglects or refuses to support her, but compels her to maintain herself, under such circumstances and length of time as to show a renunciation of his marital rights, and a separation de facto, she may act as a feme sole, in making contracts relating to her property interests, as well as to sue and be sued.

"This exception to the rigid rule of the common law is dictated in the interest of the abandoned wife, by public policy, common humanity, and natural justice, in order that the wife may provide herself with that support and protection which is denied her by a faithless husband.

"Schouler's Domestic Relations, 295, says The current of American authority, legislative and judicial alike, decidedly favors so just a doctrine. And in England, recent statutes secure to married women privileges to a similar extent, under like circumstances.' See, also, Anderson v. Jacobson, 66 Ill.

522.

"In making this deed, Mrs. Mayhugh acted, as well as she might, as a feme sole, and in order to make the sale, represented herself as such. So far as appears, she received an adequate consideration for the sale. The contract

was fully executed on both sides, as she then supposed.

She does not offer to rescind, by tendering back the consideration; but

VOL. XLIX-12

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Reis v. Lawrence.

retains the fruit of her contract, while treating it as a nullity. In the meantime, her grantee, acting, as we may presume, on the faith of representation and covenants, had improved the property, and conveyed it to a bona fide purchaser, for value — the present plaintiff in error.

"If this were an executory contract to convey, and the purchaser sought to enforce a conveyance upon payment of the consideration, equity might refuse to do so; but where she has received the consideration, and executed the contract, as far as she had capacity to do so, a court of equity will not aid her to repudiate it. This principle was recognized in Meiley v. Butler, 26 Ohio St. 535. There the wife, who was living with her husband, induced a buyer to purchase lands owned in her own right, by verbally agreeing that a debt, due from her husband to the purchaser, should be taken in part payment. It was held that after such purchase, and a conveyance by her, she could not repudiate this contract as to her husband's debt, and collect the entire purchasemoney. As against the purchaser from her, she was estopped by her verbal agreement, although under the disabilities of coverture.

'In Bullock v. Griffin, 1 Strobh. Eq. 60, it appeared that during coverture, and after the sale of the husband's lands, the wife, by agreement with the purchaser, took two shares as an equivalent for her contingent right of dower, and retained possession of them, without setting up any further claim for seven or eight years after discoverture. The court refused to give her dower, on the ground that she was estopped.

"So, where a wife joined with her second husband in the conveyance of land, she is estopped to claim dower under her former husband in the land so conveyed. Usher v. Richardson, 29 Me. 415.

"And where her deed was void by reason of defective execution, but as executrix of her husband she brought suit to recover the purchase-money for the land conveyed by such deed during coverture, it was held that she thereby affirmed the deed, and would be barred from claiming dower. Share v. Anderson, 7 S. & R. 42; 10 Am. Dec. 421."

"Upon the whole therefore we conclude that under the facts of this case, the disabilities of coverture were in fact removed, so far as to make her capable of contracting, and suing, and being sued. At least, a court of equity would regard her as a feme sole; and as such, bound by way of estoppel, on her executed contracts manifestly made for her benefit. It is for the interest and protection of a wife, thus abandoned, that she should be capable of acting as a feme sole; and while the rigid and harsh rules of the common law, as it once existed in this State, regarded the wife, who was living and cohabiting with her husband, as under or protected by these disabilities, yet where such relation has, in fact, ceased for eight years, she is empowered and justified in acting as a feme sole.

"Having so acted, in making this conveyance, and in receiving the consid eration, it would be grossly inequitable to allow her to repudiate her contract after having enjoyed its fruits."

In Richeson v. Simmons, 47 Mo. 20, by an act of the Missouri legislature, a husband and wife were declared divorced, and for a period of twenty years afterward lived apart and ceased to intermeddle with the affairs of each other.

Reis v. Lawrence.

Both married again and brought up children born of such marriages, built up separate and distinct property, and transacted their business without regard to any previous connection between them. Held, that even admitting the divorce to be illegal, the law did not require the wife, after her second marriage, when she wished to dispose of her separate property, to prevail on her former husband to join in the conveyance, while he professed at the same time to be the husband of another woman. The length of time which elapsed after the divorce, and the manner in which each party regarded and treated the other, operated as an estoppel, and precluded them from interfering with the affairs of one another.

The court said: "By the common law the wife was incapable of acting or entering into contracts without the consent of the husband. Whilst covert

she labored under a complete and total disability; but certain exceptions were made on grounds of necessity and humanity. Thus, where the husband abjured the realm, or was banished, or had left the jurisdiction of the country for an indefinite time, the wife was allowed to act as a feme sole-to make contracts, sue and be sued, and also devise or bequeath her property by last will and testament. But I am persuaded that there is little analogy between those cases and this, and no aid can be derived from them. After the divorce the parties continued in the same jurisdiction; they have resided in the city of St. Louis ever since, and now reside in it. There is nothing therefore which brings this case within the reasons of the authorities.

"From all the investigation that I have given to the case, it is of first impression, so far as the question presented is concerned. Now the record shows that since 1849, a period of twenty years, Mr. Hill and Mrs. Barclay have not only lived separate and apart, but they have ceased to intermeddle with the affairs of each other. With mutual concurrence they have both changed their situation in life; each has married and brought up children, built up separate and distinct property, and transacted their business without regard to any previous connection between them.

"It may be reasonably inferred that there is not any very amicable feeling of relationship existing between them. Under such circumstances does the law demand or require the absurdity of Mrs. Barclay, when she wishes to dispose of her private property, going to Mr. Hill and asking him to join in the conveyance, when at the same time he professes to be the husband of another woman? The length of time that has elapsed, the manner in which each party has regarded and treated the other, ought to operate as an effectual estoppel, and preclude either party from an attempt to intermeddle in the affairs of the other.

"For upward of twenty years Mr. Hill, so far as his relationship toward Mrs. Barclay extends, has treated her as a feme sole; and upon no principle of justice has he any interest in, or can he interfere or exert any control over, her property. Mr. Hill is not here claiming any right, but it is set up in defense that the deed is not valid unless he joins and concurs.

"But I am not of this opinion. I think that as Mr. Hill has voluntarily renounced his marital rights, and by a course of policy persisted in for more than twenty years, has led Mrs. Barclay and the whole world to believe that

Bank of Sonoma County v. Gove.

all control or interest on his part had ceased and been surrendered, he can no longer be a party, nor need he be consulted in any disposition she may see proper to make of her property. Any other conclusion would be promotive of injustice and lead to the greatest hardship."

An indorser of an accommodation note before maturity having transferred the note after maturity, and himself not being affected by equities between the original parties, his transferee takes the note free from such equities.

A

CTION on a promissory note. The opinion states the case. The plaintiff had judgment below.

C. V. Gray, for appellant.

A. W. Thompson, for respondent.

MCKINSTRY, J. The appellant Gove made his promissory note for $800 to defendant Stuart, who indorsed it before maturity to the National Gold Bank and Trust Company. The bank discounted the note in the regular course of its business. After maturity, the bank for a valuable consideration transferred the note to E. W. Steele. Subsequently Gove, the inaker, paid to Steele one-half the sum then due upon the note, claiming that as between himself and Stuart the instrument was an accommodation, and each was liable to the other for one-half only. Steele refused to recognize the alleged claim, but consented to receive the sum paid as a partial payment, and such sum was indorsed as a payment in the usual manner. Afterward Steele transferred the same for value to the plaintiff.

As between themselves there was an agreement between Gove and Stuart that each should pay one-half the note, but of this neither the National bank, Steele, nor the plaintiff, had notice when they respectively bought the note.

This action was commenced August 30, 1877. Defendant Stuart was discharged from his debts under the insolvent laws

Bank of Sonoma County v. Gove.

June 27, 1879, and judgment went for him in the court below. That court gave judgment in favor of the plaintiff for the balance due against the appellant Gove.

Upon this state of facts, it is contended by appellant the judgment should be reversed, because plaintiff was chargeable with notice that the note was an accommodation note, and that the maker had paid all he was liable to pay to Steele. Appellant relies upon the proposition laid down in Vinton v. Crowe, 4 Cal. 309, and approved in Hayward v. Stearns, 39 id. 58. In the first of these cases the proposition is thus stated: "A negotiable note, taken by the holder after its maturity, is taken subject to all subsisting equities between the maker and payee, but not such as subsisted between the maker and any intermediate holder."

The facts in Vinton v. Crowe are not reported, but in Hayward v. Stearns the defense relied upon the fact that while the note remained in the hands of Turner, who took after it was overdue, the latter became indebted to the maker in a sum greater than the amount of the note. There can be no doubt the law was properly applied in that case, and it must be supposed that the facts in Vinton v. Crowe were analogous. At all events, the general language employed by the court is not to be interpreted as establishing that every indorsee who takes a negotiable instrument after maturity is bound by the equities subsisting between the payer and payee; if indeed the fact, that as in the case before us, the note was made for the mutual accommodation of the original parties, can be considered as an equity within the meaning of the rule.

"It is a settled principle that if the party who transferred the instrument to the holder acquire ne note before maturity, and was himself unaffected by any infirmity in it, the holder acquires as good a title as he held, although it were overdue and dishon-. ored at the time of the transfer." Dan. Neg. Inst., § 726, citing many American cases; Chitty Bills (13th Am. ed.), 250; 9 Ex. 690.

Here the note was discounted by the National bank before it became due, without notice of the agreement between the original parties.

In England it is well established that the general rule, that the purchaser of overdue paper can stand in no better position than his transferrer, does not apply so far as to invalidate bills and notes drawn, indorsed, or accepted for accommodation, overdue at

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