William W. Lennox and others vs. Albert Eldred and Theresa Eldred

William W. Lennox and others vs. Albert Eldred and Theresa Eldred. A married woman is not liable upon a special promise to pay her husband’s debt, made in Ms lifetime, if it be not in writing, and in such form as to bind her separate estate.- Neither is a verbal promise to pay such debt, made after' the decease of her husband, a valid promise. It is, at best, a simple promise to pay the debt of another, and is without consideration, and void by the statute of frauds. Since the act of 18B3, (Laws of 1853 Chapter 516,) which declares that an action may be maintained against husband and -wife, jointly, for any debt of the wife contracted before marriage, but that the execution on any judgment in such action shall issue- against the separate property and estate of the wife, only, the husband may be joined with his wife, as a defendant, in an action to recover a debt contracted by her before marriage. THIS is an action commenced in a justice’s court, where the plaintiffs recovered a judgment. From that judgment the defendants appealed to the county court of Lewis county, where a new trial was had. The plaintiffs, in their complaint, sought to recover on two causes of action. One cause of action set out in the complaint was upon a special promise of the defendant Theresa Eldred, to pay the balance of a debt of her former husband, one Harringer, made in his lifetime, for goods sold to him, to the amount of $75.84. The other cause of action was for goods sold to the said Theresa on her own account, after the decease of her said husband, Harringer, and before her intermarriage with her co-defendant, her present husband. The plaintiffs, on the trial, gave evidence of the special promise. set out in the complaint, and the defendant Theresa denied the same. The plaintiffs also gave evidence showing that the said Theresa was indebted to the plaintiffs for goods sold her, under the second cause of action, to the amount of. $22.98, intermediate the death of her former husband and her marriage to her present husband. The defendant Theresa Eldred, on the trial, moved for a nonsuit, on the ground that she was not liable for her husband’s debts, no contract in writing being proved to charge her separate estate; and also that she was not liable to be sued for her own debt with her present husband. Such motion was also made in his behalf, on the ground that he was not liable to be sued for her debt contracted before marriage. Such motions were denied, and the court held and charged the jury that said Theresa was liable upon any promises made by her after the death of her said former husband, to pay his debt, and also that she was liable upon any special promise, made in his lifetime, to pay such debt out of any insurance money she might receive upon an insurance on his life. And also held that a verdict might be had against both defendants, to be levied out of her separate property. These propositions were duly excepted to, and the, jury rendered a verdict for the plaintiffs for $85, upon which judgment was duly entered. After a motion in the county court for a new trial had been made and denied, an appeal was duly brought to this court. G. E. Stephens, for the appellants. T. Miller Reed, for the respondents. [MAJORITY — By the Court, E. Darwim Smith, J.] By the Court, E. Darwim Smith, J. Two questions are presented upon this appeal. 1. Was the defendant Theresa liable upon the promises to pay her former husband’s debt to the plaintiffs? Upon this question I think the judge erred, at the trial, and that the .exception to the decision that she was so liable was well taken. She was not liable upon a special promise to pay her husband’s debt, made in his lifetime, because it was not made in writing, and in such form as to bind her separate estate, if she then had any such estate. The case of Shuler v. Nelson, (4 Lans. 114,) is conclusive on this point; and a promise to pay such debt after the decease of her husband likewise was not a valid promise. It was at best a simple promise to pay the debt of another, and was without consideration, and was void by the statute of frauds. (Id. White v. Story, 43 Barb. 124.) The other question relates to the second cause of action stated in the complaint and duly proved at the trial. The defendant Theresa, after the death of her first husband, and before her marriage to her present husband, purchased goods of the plaintiffs, as proved or admitted at the trial, to the amount of $22.98, for which she was clearly liable. The only question in respect to this part of the cause of action relates to the form of the remedy; whether her husband was a proper party with her as defendant. At common law, the husband was liable for the debts of his wife contracted before marriage, and remains thus liable unless discharged by statute. The statute of 1848 for the protection of the property of married women, declares that the real and personal property of any female who may thereafter marry, which she owned at the time of marriage, and the rents, issues and profits thereof, shall not be subject to the disposal of her husband, nor liable for his debts, but shall continue her sole and separate property as if she were a single female. So far as the liability of the husband for the debts of his wife before marriage, depended upon the fact that upon the marriage he took title to all her personal property, that ground, or reason of his liability is clearly taken away by this statute; but the liability of the husband at common law did not rest upon the sole ground that he took her personal property; he was liable for her debts under all circumstances, independently of this fact. He was liable if she had no property, as well as if she had large possessions. He was liable to be sued for her debts, and when so sued she was a necessary party, but the execution went against him alone. This is now changed by the act of 1853, (Less. Laws of 1853, ch. 576, p. 1057,) which declares that the action may be maintained against husband and wife jointly for any debt of the wife contracted before marriage, but the execution on any judgment in such action shall issue against, and such judgment shall bind, the separate property and estate of the wife only, and not that of the husband. The husband may be joined as defendant, under the statute. [Fourth Department, General Term, at Buffalo, June 3, 1873. Mullin, Talcott and S. D. Smith, Justices.] The charge of the county judge on this point was therefore correct; and the exception that the husband was not a proper party, and could not be joined as a defendant in the action, not well taken. It follows from these views that the judgment should be reversed, except in respect to the said sum of $23.98, admitted at the trial to be due from the defendant Theresa; and for that sum it should be affirmed, with interest, from the time of the trial before the justice, ¡November 10,1871. The appellant having succeeded in the chief matter of contest in the action, I think should have costs upon the appeal.