288 CASES IN THE SUPREME COURT [27 Ark. Harrison v. Trader and wife. [DECEMBER HARRISON v. TRADER AND WIFE. MARRIAGE CONTRACT. — The husband is liable for the debts of his wife, created dum, sola, and no contract entered into between the parties, in contemplation of marriage, can change the responsibility and .obligation of the husband in this respect, so as to effect the rights of parties out-. side of the marriage agreement. ERil.uR TO PHILLIPS CIRCUIT COURT. Hon. J. M. RANKS, Circuit Judge. Watkins & Rose, and J. C. Palmer for Appellant. It is submitted on behalf of the appellant : That the law being, that the husband shall be liable for the debts of the wife, . created &um sola, it could only be changed by the law making power. Story on Contracts, Section 83 ; Chitty on Contracts, 38 ; Higason vs. Collins, 8 Arlc:, 241 ; Lamb vs. Belden, 16 Ark., 539 ; Dobbin vs. Hubbard, 17 Ark., 194 ; Tyler On Infancy and Coverture, 332. English, Gantt & English, for . Appellees. BENNETT, J.—This is a suit brought .by the inclorsee of a bill of exchange for $2500, drawn by Ella K. Newsome, a
27 Ark.] OF THE STATE OF ARKANSAS. 289 TERM, 1871.] Harrison v. Trader and wife. feme sole, and Thomas S. N. King, on Bartley Johnson & Co., New Orleans, La., on the 13th of March, 1861, and payable. to , said Ella K. Newsome, or order, on the 20th day of No-vember thereafter, and indorsed by drawees to plaintiff, accepted and protested for non-payment. Defendant, Ella K., subsequently married W. H. Trader, and this suit is brought ao-ainst husband and wife. The suit was commenced, by attachment, on the 14th day of February, 1867. At the May term of the court, defendants made their appearance. At the next term of the rn court, de; fendant Ella K. filed a plea of general issue, and defendant • William H. filed a plea of general issue, and a special plea to the effect that defendants, contemplating marriage, in consideration ihereof, and prior thereto, made a marriage contract, which was duly acknowledged and recorded, wherein it was stipulated that the property 'of neither of said defendants should, after marriage; be taken for the debts of the • other. To this plea, plaintiff demurred, which was overruled ' by the court. Plaintiff electing to rest on his demUrrer, and declining to plead over, the court gave judgment for defendants. Plaintiff brings error. The only question presented in the case for our • consideration, as raised by the demurrer, is: Can a contract, entered into between a man and woman, in consideration or contemplation of marriage, change the liability of the husband for the debts of the wife, created dum sola, so as to affect the rights of third parties. The rule of the common law throws upon the husband the burthen of his wife's debts, contracted by her dum sola. whatever may be their amount., and makes him liable for them during 'the coverture. Welden vs. Welden, 7 Ohio, St. B., 30; Buckner vs. Smyth, 4 Dessau, (S. C.) 371. The principle upon which the husband is liable for the debts of the wife, contracted dum sola, is not that he received property by . her, for the circumstance of his having received property from her does not increase his liability, nor the fact 27 Ark.-19
290 • CASES IN TRE SUPREME COURT [27 Ark. Harrison v. Trader and wife. [DECEMBER that he received no property by her diminish such liability. • Nor is the liability based upon the idea that he is a debtor ; but tile real ground of this liability is, that the wife, by her marriage, is entirely deprived, of the use and disposal of her property, and can acqnire none by her industry. The personal property of the : wife passes . absolutely to the husband, and he is entitled to the use. of her real estate during covert-ure, and her perSon, labor and ::.earnings belong 'unqualifiedly to' him. Tyler on Infancy and , COverture, page 332-33. Marriage is a good cOnsideration to sustain a contract made in contemplation of it, or, as Chancellor Kent says, "Marriage has always been held th be the highest consideration•in law." Strong vs. Arden, 1 John's Ch. R., 271. But a contract made upon such cOnsideration : will only be enforced in equity upon those who came within the seope : of the consideration of' niarria.ge . 2 StorYs: Eg. jun,- Sec. 986. While, as between husband and wife, the contracts entered into between themselves before Marriage, in: reference to the prOperty of one another, by- means of which theY may change and ' control 'the general rules of their nuptial state, , may be held good, they cannot change or vary the terms of the conjugal relation itself, nor can they add to or take from the personal rights or duties of husband 'and ' wife. In the case of Moore_ vs. Craig, 5 Bds. & Pull., N. R.; 148,— it was held' that no agreement between the husband and wife can alter the state of liability or : non-liability which the law imposes upon each. The ground, upon which the plea in the case before us is sought to be supported is, that the defendants mutually agreed, before marriage, that the property of one should not be taken tO pay the debts of the other. While . a calm, dispassionate investigation of many authorities shows that the common law disabilities of the wife have been more carefully pruned than those of the husband, and that he is obliged to pay her ante-n4tial debts, it would seem but reasonable and just that if she retains her property to her own exclusive use
27 Ark:I' • OF THE STATE OF ARKANSAS. 291 TERM, 1871.] Harrisdn v. Trader and wife. and control, notwithstanding the marriage, this liability on his Tart should not continue. .But 'the law remains unchanged i thisegard, we cannot hold otherwise than that . Compact,- no matter how solemnly entered into : •between•• a man and woman, that would attempt to; and which . has' for its object the contravention . of the general policy of the law in) settling the relations of domestic life, and . which creditors, third parties and the publie • are interested to preserve, is invalid. In the language of Lord Chief justice Kenyon, in the case of Ma7hall:vs. Mary Ruttan, 8 Term R., -page' 547, "How can it be in' the power of, any persons, by their private , agreements to alter the character and conditions which, b r law, result from the state of marriage . while it -subsists, -.ancL from thence to infer rights of action and legal responsibilities as doueildès '16116wiiii 'from suCh alteratia: of character and condition ; or hoW can any power,' short of- that of the fl Leg:- islature,' Change that' which by - the coMmon law n Of .the land is . established." . - The law being that the husband shalt- be :liable fel-- the 'debts of, the; -wife "Cteated dum solar it-could not be changed "by the individual acts' of ; the man and woman, so • as to affect the *rights of parties outside of the marriage agreement: • ' The ' demurrer -was imprbperly ;overruled. The cause is remanded with instructions to sustain the demurrer, and' to proceed with the case in accordance with law and not inconsistent with this Opinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.