entitled to an equitable claim in the property equal at least to dower, and especially so since she had surrendered valuable property to the husband. Although the court speaks of dower by estoppel, yet there seems to be some idea of an in rem interest in the property acquired. The widow was granted relief similar to the first claim made by her. Here we have practically a recognition of the wife as having a partner's interest. No effort was made to restore to her the property she had brought to the husband nor to compensate her for services qua services. Incidentally it was pointed out that the statute does not begin to run prior to knowledge by her of the facts.

7

It is said that the right to alimony does not arise on the annulment of a void marriage because there is no duty of support. It will be recalled that many suits for annulment of marriage are denominated divorce actions. In a few states alimony is granted in such cases by statute, and often alimony pendente lite is granted. In Iowa, the statute provides that where the marriage is declared a nullity, if either party entered into the contract of marriage in good faith, then compensation shall be made to the innocent party as in cases of divorce. So in Barber v. Barber, where the marriage was declared to be void because of the insanity of the wife at the time, although she had made no contribution, she was awarded the sum of $3,500.00 out of a total property valued at $15,000.00.

It is intimated in Massachusetts that the de facto wife may be granted an allowance for her own support and the support of the children that may have been born to the parties, yet the court points out that this is wholly apart from any idea of compensation for services. It does not seem desirable here to discuss in detail what showing must be made where alimony is granted pendente lite in cases of annulment.10 In Temescal Rock Co. v. Industrial Accident Commission," the de facto wife was awarded compensation under the Workmen's Compensation Act. The Act provided that questions of dependency should be determined according to the fact. She

'As for example in Connecticut, Illinois, Iowa, Kentucky, and Ohio. See Stapleberg v. Stapleberg, 77 Conn. 31 (1904); Brown v. Brown, 18 Ill. App. 445 (1886); Ricard v. Ricard, 143 Ia. 182 (1909); Strode v. Strode, supra, n. 6; Vanvalley v. Vanvalley, 19 Oh. St. 588 (1869); note in 3 L. R. A. (N. S.) 192. 7aIowa Code, sec. 3187.

874 Ia. 301 (1888).

Adams v. Holt, 214 Mass. 77 (1913). See note in Ann. Cas. 1914 B 850. 10See notes in 60 Am. Dec. 676; 3 L. R. A. (N. S.) 192; Ann. Cas. 1914 B 850; 10 Am. Rep. 460.

11180 Cal. 637 (1919). In Wright v. Lore, 12 Oh. St. 619 (1861) it was held that under a statute providing that "The issue also of marriages deemed null in law, shall nevertheless be legitimate," the children of a de facto marriage should be heirs of the father equally with legitimate children.

was held to be a member of the family or household of the employee. As the cases are exceptional which recognize in the putative wife qua wife any claim against the man, and as it is generally felt that it is a great hardship on the woman to allow her neither dower, alimony nor a share in the property on the termination of this relation, various adjustments and remedies have been permitted on rather divergent theories.

(a) An Action In Case For Deceit.

13

Probably all common law jurisdictions would grant to the deceived wife an action in damages for the deceit.12 She may have damages as premium pudicitiae and for the false conjugal position assumed before the world and its consequent humiliation. The damages may be increased by proof of valuable services rendered which have increased the accumulations. In such action evidence of the wealth of defendant is admissible (a) because to compensatory damages may be added exemplary damages by proof of the wealth, for wealth. is an element of social rank and influence, and so the greater the wealth, the higher the rank, the greater the injury to the woman; (b) because it supports the allegations of value of the services rendered. Additional exemplary damages may be allowed by the jury for personal injuries inflicted during the continuance of the relation.14 Such action does not survive against nor in favor of personal representatives. 15 It fails even where it has been begun during the life of the husband but has not been reduced to judgment, and a motion for revivor against his personal representatives will not be sustained. 16 In Larson v. McMillan,17 it was permitted the wife to recover damages in an amount equal to the value of the property right she would have had, if she had been a wife, and also for the pain of child-birth. She was allowed to prove the amount of the husband's wealth as of the time of the trial and not as of the time of the discovery of the fraud (some two years earlier). A judgment for $20,000 was held to be not excessive.

12Anon., Skin. (Eng.) 119 (1683); Garford v. Richardson (Eng.-1684) cited in Buller, N. p. 32b.

13Higgins v. Breen, 9 Mo. 497 (1845). No case has been discovered which authorized damages to be increased for the support of children.

14Blossom v. Barrett, 37 N. Y. 434 (1868). But see Deeds v. Strode, 6 Idaho 317 (1898).

isPayne's Appeal, 65 Conn. 397 (1895); Price v. Price, 75 N. Y. 244 (1878); Grim v. Carr, 31 Pa. 533 (1858). But it survives under the statutes of Maine: see Withee v. Brooks, 65 Me. 14 (1875); see notes in 33 L. R. A. 411, and in 48 Am. St. Rep. 215, on survival of actions.

16Price v. Price, supra, n. 15.

Of course, if in a putative marriage both parties acted in good faith, there could be no action for deceit. In such case, in a very few states only, would the wife have any remedy at all unless some theory of an in rem interest should be adopted, since but few states have so far permitted a recovery for work and labor.

In Idaho18 in one case the de facto spouses went through a marriage ceremony in good faith believing that the woman had been validly divorced from her former husband. On discovering that that was not true, they parted and the woman sued the man for damages resulting from a gonorrheal infection received from the man while. the parties cohabited as husband and wife. The court held that she had no cause of action; that he had not deceived her and if there was any fault it was hers. It is submitted that here the court is really applying the law of husband and wife to torts committed by strangers inter sese. It is generally true that the wife may not sue the husband for damages for a personal tort committed during the continuance of the marital relation. Various reasons were thought to exist at common law for this but there is a growing tendency to allow the action.19 In the Idaho case, however, it would seem that the man just as much held himself out to be free from communicable disease which would render the marriage relation undesirable and dangerous to the woman, as he did that he was free from other matrimonial alliances. There is every reason of social interest to permit a recovery in such cases and it is only by a false application of the law of husband and wife that recovery is denied.

A husband may settle property upon the de facto wife in compensation for the wrong done her, and the settlement is valid, even as against creditors, as a conveyance for value,20 whereas if she had been a legal wife and some other wrong had been done her, the conveyance would be invalid. Of course, a conveyance to a putative wife cannot destroy the claims of the legal wife. If, for example, under the local law the legal wife has an interest in the property acquired during the marriage, the husband could not convey it away from her.21

1799 Wash. 626 (1918).

18 Deeds v. Strode, supra, n. 14.

19See comment and cases cited in 33 Yale L. J. 315 (1924).

20Hutchinson v. Horn, 1 Ind. 363 (1849); Fellows v. Emperor, 13 Barb. (N. Y.) 92 (1852); Cf. Wait v. Day, 4 Denio (N. Y.) 439 (1847); Cooper v. Witham, I Lev. (Eng.) 247 (1668); The Lady Cox's Case, 3 P. Wms. (Eng.) 338 (1734). "Hughes v. Doe, 114 Cal. 199 (1896). See note in 9 Cal. L. Rev. 68. Cf. Dahne v. Dahne, 49 Cal. App. 501, 193 Pac. 785 (1920).

(b) An Action for the Value of the Services Rendered.

One of the reasons for seeking an action in contract is the fact that the tort action does not survive. It frequently happens that the tort is not discovered until the death of the party committing the fraud. Another reason may be that usually the statute of limitations applying to tort actions is shorter than that applying to contract actions. Again, if there be no deceit because both parties acted in good faith, there could be no tort action.

Some few states-and the number has increased somewhat in recent years permit a quasi-contractual action for unjust enrichment. It is admitted that the services were not performed with the expectation of a money consideration; but it is held to be unjust to permit the wrongdoer to have the benefit of the services and not pay for them. This view has been notably defended by Keener, 22 Woodward, 23 and Page.24 The last suggests that the reason why this remedy has not been more generally adopted is that the common count for work and labor was later than the money counts or the other counts, and was never recognized in some jurisdictions at all.

It is generally admitted that this remedy is in many cases inadequate. If there is any adequate remedy, therefore, it should be permitted if it is consistent with our general legal theories. Several jurisdictions have altogether rejected the view that the wife may have an action in indebitatus assumpsit because the services were performed qua wife and not as a paid servant, believing that it is wholly a misconception to permit a remedy on a ground never intended by the parties. Of course, there would be no difference in result where the man is the defrauded party.25 If the wrongdoing woman were sued along with her husband for the deceit, there was no remedy at all at common law because the tort committed was

22Keener on Quasi-Contracts, 318-326 (1893).

23 Woodward, The Law of Quasi-Contracts, secs. 184, 282 (1913). "Page on the Law of Contracts, vol. 3, sec. 1515. Recovery in quasi-contract has been permitted in California, Louisiana, Missouri, North Carolina, Wisconsin; and there is a dictum to that effect in Georgia. See Mixer v. Mixer, 2 Cal. App. 227 (1905); Schmitt v. Schneider, 109 Ga. 628 (1900); Fox v. Dawson, 8 Mart. (O. S.) (Ia.) 94 (1820); Higgins v. Breen, supra, n. 13; Sanders v. Ragan, 172 N. C. 612 (1916); Wolf v. Fox, 178 Wis.369 (1922); Cf. Boardman v. Ward, 40 Minn. 399 (1889).

The following jurisdictions have denied a recovery in indebitatus assumpsit: Connecticut, Maine, Massachusetts, New York, Pennsylvania. See Payne's Appeal, 65 Conn. 397 (1895); Brown v. Tuttle, 80 Me. 162 (1888); Cooper v. Cooper, 147 Mass. 370 (1888); Cropsey v. Sweeeny, 27 Barb. (N. Y.) 310 (1858); Swires v. Parsons, 5 Watts & S. (Pa.) 357 (1843). In the Connecticut case the plaintiff imposed upon was the man.

25Payne's Appeal, supra, n. 24.

connected with a contract by which the husband could not be bound without his consent.20

26

Assumpsit is inadequate partly because it does not permit consideration of the far more valuable features of the conjugal association: the love and affection bestowed; the society, advice and helpfulness; the sort of services that so often cannot be purchased with money; the enlargement of the material estate because of the woman's earning or thrift, and skillful management. Under the assumpsit theory, what would be the measure of recovery of the putative wife of a rich man? Let us assume that the only services which she performs consist in directing the household and giving orders to the servants, and acting as the family's social representative. Could she introduce evidence that would sustain a count for work and labor? Suppose as wife of a rich man she spent her entire time in indulging her own whims and fancies, could she recover for an unjust enrichment? Or suppose the accumulations had been dissipated in unfortunate speculations, shall she bear none of the risk? Under the latter circumstance is the man unjustly enriched or enriched at all at her expense? It is to be recalled that in some jurisdictions an action for unjust enrichment is not maintainable save where specific property has come into the hands of the person so alleged to be unjustly enriched, which has increased his assets.27

Suppose the putative wife is the "man of the family"28 and that it is only through her capacity, industry and intelligence that the large accumulations have been made, and that wise investments have brought about a large estate. Is she to have the mere pittance of a domestic and not share in the increments?

(c) Benefits other than Services Conferred by the Wife.

Suppose the wife brings property to the marriage which the husband uses or consumes; or suppose she pays obligations for the family account from her individual funds but under circumstances that do not indicate that a gift was intended? Many of the decisions cited by writers and purporting to affect this problem, were not rendered in cases of de facto marriage, but concerned illicit relations.

26Cooper v. Witham, 1 Lev. (Eng.) 247 (1668).

27See 32 Yale L. J. 507. Other brief notes may be found dealing with the general problem in 36 Har. L. Rev. 487; 71 Univ. of Pa. L. Rev. 288; 21 Mich. L. Rev. 478; 23 Col. L. Rev. 190; 7 Minn. L. Rev. 172; 2 CORNELL LAW QUARTERLY 237.

28 Bekins v. Dieterle, 5 Cal. App. 690, 91 Pac. 173 (1907). This was not, however, a case of putative marriage.