Opinion
September 27, 1951.
HERRMANN, J., sitting.
Robert C. Barab for Petitioner, Joseph Gwiazda.
Newton White for Respondent, Joseph Gwiazda, Administrator of the Estate of Frances Gwiazda.
Joseph H. Flanzer for Respondent, Virginia Josephine Mikolajewski.
Petition of Joseph Gwiazda for a Rule to Show Cause why a certain mortgage should not be satisfied of record. Rule issued upon Joseph Gwiazda, Administrator of the Estate of Frances Gwiazda, and upon Virginia Josephine Mikolajewski. Rule discharged.
On June 9, 1948, Frances Gwiazda, the wife of the petitioner Joseph Gwiazda, became the holder of a mortgage of record upon the property at No. 825 North Harrison Street, Wilmington, Delaware. The mortgage was executed by the owners of the property, Charles A. Mikolajewski and Virginia Josephine Mikolajewski, the daughter of Frances Gwiazda. Subsequently title to the property was vested in Joseph Gwiazda and Frances Gwiazda as tenants by the entireties. Frances Gwiazda died intestate on February 2, 1950 and Joseph Gwiazda became the administrator of her estate. The mortgage remains a lien of record against the property, title to which is now vested in Joseph Gwiazda as surviving tenant by the entireties.
The petitioner asserts that his wife, prior to her death, entered into an oral agreement with him whereby she promised that she would satisfy the mortgage which she held if he would purchase the property and take title in their names as tenants by the entireties. He contends that he performed his part of this contract but that his wife failed to satisfy the mortgage as she had promised to do. Attempting to remove the mortgage as a lien against the property, he now seeks to invoke the provisions of Code Paragraph 3694. In so doing, he names himself, in the capacity of administrator of his wife's estate, as one respondent, and he names Virginia Josephine Mikolajewski, the daughter and heir-at-law of his wife, as the other respondent.
Paragraph 3694, Revised Code of Delaware 1935, provides as follows:
"In all cases where mortgages or judgments are liens on real estate in this State and the same have been paid and the mortgagee or obligee or their executors, administrators or assigns shall refuse or neglect to enter satisfaction of such mortgage or judgment on the record thereof in the office where the same is recorded or entered, within sixty days after the payment thereof, the mortgagor or obligor or their heirs or assigns may, upon sworn petition to the Superior Court of the County in which such mortgage or judgment is recorded or entered, setting forth the facts, obtain from such court a rule on the said mortgagee or obligee or their executors, administrators or assigns, returnable at such time as said Court may direct, requiring such mortgagee or obligee or their executors, administrators or assigns to appear on the day fixed by said Court and show cause, if any they have, why such mortgage or judgment shall not be marked satisfied on the record thereof.* * *
"Upon the return of said rule, if the Court shall be satisfied from the evidence produced that such mortgage or judgment, together with all interest and costs due thereon, has been satisfied and paid, said rule shall be made absolute, and said Court shall order and decree that said mortgage or judgment is paid and satisfied, and shall order and direct the Recorder, or the Prothonotary, in whose office such mortgage or judgment is entered, to enter on the record thereof full and complete satisfaction thereof."
Superior Court for New Castle County, No. 115, Civil Action, 1951.
Theoritically at least, this is an adversary proceeding between a husband and the administrator of his wife's estate, based upon an alleged contract between the husband and wife. I am of the opinion that such an action is not cognizable in this Court.
At common law a contract between husband and wife was invalid and unenforceable. The Married Women's Act of this State, which removed many of the common-law disabilities of married women, appears at Paragraph 3541, Revised Code of Delaware 1935, and provides as follows: "The property of a married woman, whether real, personal or mixed, and choses in action which she may have acquired in any manner, and all the income, rents and profits thereof, shall be deemed to be her sole and separate property and she may sell, convey, assign, transfer, devise, bequeath, encumber or otherwise dispose of the same, and she may contract jointly (including with her husband) or separately, sue and be sued, and exercise all other rights and powers, including the power to make a will, which a femme sole may do under the laws of this State; * * *."
The primary question for determination is whether this Statute has removed the common-law disability of a married woman to contract with her husband.
With respect to the rights and liabilities of a married woman as to persons other than her husband, the Married Women's Act has been held to be a remedial statute and, therefore, one to be liberally construed, Heitz v. Sayers, (1923) 2 W.W. Harr. 207, 121 A. 225; Industrial Trust Co. v. Cantera, (1933) 5 W.W. Harr. 364, 165 A. 338. With respect to the rights and liabilities of a married woman as to her husband, however, this Court is committed to a strict construction of statutes in derogation of the common law.
In Masten v. Herring, (1907) 6 Penn. 282, 66 A. 368, affirmed by the Supreme Court of Delaware, see 6 Penn. 286, this Court had for consideration a statute which provided: "and in any case, a married woman above the age of twenty-one years may give a bond with or without a warrant of attorney, just as if she were a femme sole". 14 Del. Laws, c. 550, § 9, Rev. Code 1852, as amended in 1893, p. 601. Applying the rule that a statute should not be construed so as to alter or change the common-law status of husband and wife beyond the clearly expressed scope and purpose of the act, this Court held that the statute in question did not change the common law as to contracts between husband and wife and that a bond given by a wife to her husband was invalid and unenforceable at law.
A provision of our Married Women's Act was construed in Plotkin v. Plotkin, (1924) 2 W.W. Harr. 455, 125 A. 455, 456. There this Court had for consideration the portion of the Statute which provides that a married woman may "sue or be sued". Notwithstanding the absence of any qualification of the broad language of the Statute, this Court concluded that a husband may not sue his wife at law in this State because "it is not clearly expressed by the provisions of the statute in question, that the Legislature intended to confer upon a husband and wife the right to sue each other".
The instant case requires examination of that portion of Code Paragraph 3541 which states that a married woman "* * * may contract jointly (including with her husband) or separately * * *". If the words "including with her husband" appeared after the word "separately" there would be no problem here. If that were the case, it would be apparent that the Legislature had expressly conferred upon a wife the right to contract with her husband. As the language stands, however, there is ambiguity and it is necessary to construe the statute.
In so doing, I am constrained to apply the strict rule of construction adopted in the Masten and Plotkin cases, without regard for the many changes in social and economic concepts which have occurred since those cases were decided. By the application of that rule, it follows that the right of a wife and her husband to contract with each other is not expressly granted in Code Paragraph 3541; that, therefore, the common-law disability remains as to contracts between husband and wife; and that, accordingly, such contracts are not enforceable at law.
If this result seems repugnant in view of present-day conditions, the Legislature must provide the remedy. While elasticity is desirable for the growth of the law, consistency of judicial approach is, I think, essential for its stability.
There remains the question as to whether the petitioner may, after his wife's death, avail himself of his alleged contract with her by bringing an action against her personal representative. The law in this State on this point seems settled. In Spruance v. Equitable Trust Company , 12 Del. Ch. 12, 103 A. 577, 578, which was an action for money brought by a wife against the executor of her husband's estate, the Chancellor stated: "There is no difficulty as to the jurisdiction of this court to decide the questions raised. Elsewhere the disability of husband and wife to make contracts is said to exist only during coverture, and that upon the termination thereof by death, or divorce, the contractual rights may be enforced, in the former case by or against the representative of the deceased spouse. But such is not the law in Delaware. * * *" (Citing Masten v. Herring, supra.)
This case was decided in 1918. The Married Women's Act, Code Paragraph 3541, was enacted in 1919. Thus, this case does not constitute a holding under our existing statute as to the ability of husband and wife to contract with each other.
See also duPont v. Wilmington Trust Co., (1946) 29 Del. Ch. 7, 45 A.2d 510.
I hold, therefore, that the alleged contract, upon which the petitioner has founded the instant proceeding, is unenforceable in this Court.
Accordingly, the Rule will be discharged and the Petition dismissed.