Worthington v. Cooke

Alvey, J., delivered the opinion of the Court. This is an action brought on a separate covenant of a married woman, contained in a lease, against the lessee and her husband jointly. The covenant is to pay a certain annual rent for the premises, and all taxes thereon; and the breach alleged is the non-payment of rent accrued due, and certain taxes that have been assessed. The defendants demurred to the declaration; and the grounds of the demurrer are, according to the contention of the defendants, 1st, that a married woman is not suable at law upon breach of a covenant made during coverture; and, 2nd, that if the action he maintainable against the wife, it was error to join the husband.

Whether these positions or either of them he well taken, depends upon the proper construction of the second section of the Act of 1867, ch. 223. That Act adds two sections to Art. 45, of the Code; and by the first of these additional sections, it is provided that, in all cases of leases for definite terms to married women, if the rent reserved remain in arrear for ninety days, the landlord shall have the right to levy distress for such rent, “in the same ³⁰⁷ manner as if the lessee was a feme sole;” and if there he no sufficient distress found upon the premises, he shall then have the power to make re-entry, or bring such action for the recovery of the demised premises, as he might do if the lessee were a feme sole, and had covenanted for the payment of the rent, and to suffer such re-entry to be made. The second section of the Act, the construction of which is particularly involved in this case, reads thus: “In all deeds hereafter made to married women of real estate or chattels real, it shall be competent for the grantee or lessee to bind herself and her assigns, by any covenant running with or relating to said real estate or chattels real, the same as if she ivas a feme sole.” As a general principle it is incontrovertibly true, that, at common law, a married woman cannot contract so as to make herself liable; though upon the principles of a Court of equity she may contract so as to bind her separate estate; and it is equally true, as a general proposition, that a feme covert cannot be sued alone at law. But to both these general propositions there have been, from an early period in the history of the common law, certain exceptions allowed, not only for the benefit of the wife, but for the benefit and protection of those with whom she might contract.

As, for instance, if the husband was banished or had abjured the realm, (Co. Litt., 133 a;) or if the husband be an alien residing abroad; in such cases, the wife would not only have the capacity to contract, but she would be capable of suing and of being sued alone, as a feme sole. Deerly vs. Duchess of Mazarine, 1 Ld. Raym., 147; Walford vs. The Duchess of Pienne, 2 Esp. N. P. Rep., 554; De Gaillon vs. L’Aigle, 1 Bos. & Pull., 351; 2 Kent Com., 155.

There is nothing, therefore, very anomalous, even at the common law, in a married woman being allowed the capacity of and treated as a feme sole, under special circumstances. In the cases just mentioned the power to contract, and the incidental right to sue and liability to be sued alone, ³⁰⁸ were allowed from the force of circumstances and the necessity of the case; but the right of a feme covert to contract in reference to her estate, and the consequent right to sue and her liability to be sued, have been greatly extended in recent times by statute; and the statute under consideration is only an instance of the amplification of that power. But, while the statute before us is explicit in conferring the power to contract, and in declaring that the covenants authorized to be made shall be binding on the feme covert as if she was in fact a feme sole, it is insisted that, as the statute is silent as to the remedy for the enforcement of the covenants, the common law principle applies, that a feme covert is not suable at law on a contract made during coverture, and that the only remedy is by bill in equity. Whether this be so or not depends upon the