Klecka v. Ziegler

Page, J., delivered the opinion of the Court. In the bill of complaint in this case, filed by the appellant, it is alleged that Lena Ziegler, being seized and possessed of two leasehold lots of ground, situate in Baltimore City, aquired by her under the last will of Anton Zenker, with her husband, leased to the appellant one of these lots for a term of two years, with the privilege of renewing the same for a further period of three years; that the lease contains a clause providing that at any time during the continuance of the demise or any renewal thereof, the appellant should “have the right to purchase” the demised premises, including the dwelling house on the west side of Dallas street, “ upon tendering in payment therefor the sum of $3,300, with all accrued rent, and the said Lena Ziegler and George H. Ziegler, her husband, their heirs and assigns, shall execute to him a good and sufficient deed of conveyance therefor;” that the appellant notified the appellees 01 his intention to purchase, tendered the price, and performed all the requirements on his part to be performed, but the said Lena and her husband have refused to make a conveyance of the property as they ought' rightfully to do, and thereupon it is prayed that the agreement may be specifically enforced. The appellees demurred, and from the decree dismissing the bill the appellant has appealed. The contention of the appellees is, that the agreement, the performance of which is prayed for in the bill, is void as to Lena Ziegler, because at the date of the execution she was a married woman.

The solution of the question thus raised depends upon the construction to be given to the statutes of our State applicable to the subject; for it must be conceded that at common law a feme covert had no power to make a contract to convey her lands that could be enforced either in law or equity. By the second section of Art. 45 of the Code, as enacted in 1861, all the property, ⁴⁸⁴ real and personal, belonging to a married woman at the time of her marriage, and all subsequently acquired, “ she shall hold for her separate use, with power of devising the same as fully as if she were a feme sole, or she may convey the same by a joint deed with her husband, &c. This section was repealed by the Act of 1872, ch. 270, and a substitute enacted in lieu thereof. This substitute contains the whole of the original section, with two additions.

By the first addition, where a husband is lunatic, &c., she may convey her property as a feme sole; by the second, it is provided that “ any married woman may be sued jointly with her husband in any of the Courts of this State, or before any justice of the peace, on any note, bill of exchange, single bill, bond, contract or agreement, which she may have executed jointly with her husband, and may employ counsel and defend such action or suit separately or jointly with her husband; and judgments recovered in such cases shall be liens on the property of defendants, and may be collected by execution or attachment in the same manner as if the defendants were not husband.and wife; provided, that in all cases where a married woman has made such contract or agreement as a feme sole, under section seven of this Article she may be proceeded against as therein provided.” Referring to this statute in Smith v. State, 66 Md. 218 , where the cause of action was a bond executed by a wife jointly with her husband, it was said, “ there is no ambiguity, for the language is broad and comprehensive, and is applicable to every married woman who has executed any bond jointly with her husband. * * When the Legislature says she may be sued on any bond executed jointly with her husband, can the judicial department undertake to say that the law-makers meant that she shall not be sued on some bonds executed jointly with her