Opinion
06-30-1900
FIRST. NAT. BANK OF ASBURY PARK v. ALBERTSON et al.
John F. Hawkins, for complainant. W. B. Stout, for defendants.
Bill by the First National Bank of Asbury Park against Jennie R. Albertson and another. Demurrer to complaint overruled.
John F. Hawkins, for complainant.
W. B. Stout, for defendants.
EMERY, V. C. The bill is filed to obtain decree against the defendant Mrs. Albertson and her husband for the amount of a promissory note dated August 17, 1899, for $1,375, made by Mrs. Albertson to the order of her husband, and by him indorsed to complainant. The bill alleges circumstances which sufficiently show that the complainant holds the note for money advanced upon the credit of the wife for her sole and separate use, and that she personally received the consideration. Defendant demurs generally for want of equity, relying orally at the argument upon the point that complainant's remedy is at law. As to this point the case is governed by the cases cited by complainant's counsel holding that the contract made by the note being one which in its inception is a contract, made between husband and wife, no legal cause for action upon the contract of the wife can arise in favor of the indorsee, and that the remedy against the wife must be in equity. Bank v. Brewster (Err. & App. 1886) 49 N. J. Law, 231, 12 Atl. 769; Bank v. Ming, 52 N. J. Eq. 156, 27 Atl. 920 (Pitney, V. C); Bishop v: Bourgeois (N. J. Ch.) 43 Atl. 655 (Grey, V. C; 1899). The notes in these cases were all controlled by the married woman's act of 1874, under which the general power given by the fifth section to a married woman "to bind herself by contract in the same manner and to the same extent as though she were unmarried," was qualified by the fourteenth section, which provided that nothing contained in the act should enable husband and wife to contract with each other, except as before the act. An amendment to the act, passed June 13, 1895 (P. L. 821; 2 Gen. St. p. 2017), provides that a married woman shall thereafter "have the right to bind herself by contract with any person in the same manner and to the same extent as though she were unmarried, which contracts shall be legal and obligatory, and may be enforced at law or in equity, by or against such married woman, in her own name, apart from her husband." The amendment repeals also all inconsistent acts and parts of acts. I think this amendment to the act, giving power to contract with any person, does not, without an express repealeror reference to the husband, have the effect of repealing the express disqualification against a contract with the husband in the original act, so as to make such contracts legal contracts, as distinguished from equitable. The amendment of the fifth section must be read into the act as if the whole act, including the fourteenth section and the amended fifth section, were parts of one and the same act, and as if the amended fifth section had always been in the act. Parrell v. State, 54 N. J. Law, 421, 24 Atl. 725. Even taking the amended fifth section to be an implied repealer of the provisions of the fourteenth section, it would not deprive this court of its existing jurisdiction to enforce contracts made by a married woman binding her or her separate estate. 1 Pom. Eq. Jur. § 280. No decision has yet been made by a court of law since this passing of the act of 1895 holding that these contracts between husband and wife are enforceable at law by reason of that act, and the defendants in this case have, as appears by the bill, interposed to a suit at law brought on this note the defense that the remedy was in equity. Upon this plea being filed, complainant discontinued the suit at law, and under these circumstances a case is presented where this court should not decline to exercise jurisdiction, existing at the date of the act of 1895, upon the theory that the rights which were originally of a purely equitable character are, under that act, clearly enforceable at law. The demurrer is overruled, with costs.