Relief Building Ass'n v. Schmidt

Alvey, J., delivered the opinion of the Court. ■ The appeal in this case was taken from an order dismissing the petition of the purchaser, under a decree, praying for the rescission of an order of ratification of the sale. The decree was passed upon the petition of the appellant, the mortgagee, for the sale of the mortgaged premises; and default having occurred, the sale was made and reported by the trustee, the .appellant having become the purchaser. The mortgage was made by husband and wife, the property embraced being that of the wife, acquired by her in 1812. After the property had been advertised for sale by the trustee under the decree, the wife, one of the mortgagors, applied for the benefit of ⁹⁸ the insolvent law of the State; the application being-made on the 12th of April, 1879, and the sale hy the trustee under the decree being made on the 14th of April, 1879.

After this, the trustee in insolvency proceeded to-sell the same property, and the appellant became the purchaser thereof at that sale also. This latter sale was reported to the insolvent Court, and the appellant excepted thereto, upon the ground that a married woman cannot take the benefit of the insolvent law. That proceeding is still pending undisposed of. Afterwards the sale made under the decree was finally ratified.

Subsequently, hut during the same term of Court, the appellant, as purchaser, filed a petition asking a rescission of the order of ratification, upon the ground that the sale-made hy the trustee under the decree, was wholly null and void, hy reason of the fact that Mary Schmidt, the feme covert mortgagor, had previously applied for the-benefit of the insolvent law. This petition was dismissed,, and it is from the order of dismissal that the present appeal has been taken. The sole question for decision is, whether the insolvent law of this State, in force at the time of the application involved, embraced the case of a married woman as. an insolvent debtor. We are not aware that it was ever supposed, until very recently, that the insolvent laws of this State had any application whatever to the case of a married woman, treated as an insolvent debtor.

It is quite certain that the insolvent laws that prevailed prior to the Act of 1854, ch. 198, had no such application. The liability' to arrest and imprisonment for debt, and the appearance bond of the applicant, contemplated hy those laws, to say nothing of many other provisions that a married woman could not, consistently with her legal status, he required to conform to, would plainly show that those laws were never intended to apply to the case of a married woman. After ⁹⁹ the adoption of the Constitution of 1851, abolishing imprisonment for debt, and the appearance bond of the applicant was no longer essential, it became necessary that the insolvent system should he revised, and hence the passage of the Act of 1854, ch. 193, which was only an attempt to revise and systematise the previous legislation upon the subject, and making it conform to the new state of things. There is nothing whatever to indicate any purpose on the part of the Legislature to embrace within the provisions of that Act any persons or class of persons not embraced by the pre-existing insolvent laws.

That Act, with hut slight modification in some of its provisions, was embodied in the Code, as Article 48. The main design of that, as of all previous insolvent laws, was the relief of insolvent debtors, and to discharge them from their contracts and obligations. Hence it was provided, that, if the applicant complied with all the provisions of the statute, and there was no sufficient cause shown against it, the Court should “discharge the insolvent from all debts and contracts made before the filing of his petition, and that he should he released from all such debts and contracts,” &c. Code, Art. 48, sec. 4.

This main provision and leading purpose of the statute could have no application to the case of a married woman, as the law stood at the time of the passage of the Act of 1854, or the adoption of the Code in 1860. As the law stood at that time and previously, a feme covert could