The ante-nuptial agreement shows that the property in question was not the plaintiff's separate property, and that instrument gives her the control and rents of her separate property, acquired aftermarriage as well as that held at the time; but it gives her no right to make or take leases, to contract under seal, or otherwise, nor to acquire property in any other way than that pointed out by law.
The right of plaintiff to sue depends on the 7th sec. of the Practice Act, which gives her the right to sue without her husband where the action concerns her separate property.
The act makes the separate property of the wife to consist of property held before marriage, and that acquired after by gift, bequest, devise, or descent. The premises come under neither of these heads, and section 2 of the same act, declares that all property acquired after the marriage, or otherwise, shall be common property.
The parties cannot by their agreement alter their rights as fixed by the statute. Their contract can only reach things real or personal, in esse. Their rights as husband and wife are fixed by the law, and the law cannot be repealed by contract. And the common law, where it is not altered by the statute, remains in force. Her deed is a mere nullity. (Chit. on Con. 150; Walker, 322; 3 Wheat. 309; 6 Ala. 737; 3 Humph. 80; 1 N. & M. 33; 7 Mass. 254; 12 Pet. 345.)
Shecannot contract; and the powers granted are to be limited to the strict meaning of the terms creating the estate. (4 Ves. 375.)
The lease, if of any force, vested instanter in the husband. (5 Shep. 301; 17 Pick. 391; 5 Met. 320; 15 Cow. 587; 8 Mass. 229.)
Sec. 9 of the statute gives the rents of common property to the control and disposition of the husband. They are his absolutely at common law. (17 Vin. 626; 2 Smedes & M. 165.) Could be taken by his creditors and go to his executors.
We are not estopped by the lease, which we say is void. (3 J. E. 101; 3 Bart. 634.)
The law does not in any case allow a married woman to sue without a prochein ami. (6 How. 53, 233, 396.)
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Wells, Justice, concurred.
OPINION
HEYDENFELDT, Judge
Our Practice Act gives to a married woman the right to sue without her husband where the action concerns her separate property.
Under the acts defining the rights of husband and wife, the property of " the wife owned by her before marriage, and that acquired afterwards by gift, bequest, demise, or descent, shall be her separate property."
The rents and profits of her separate property are declared to be common property.
The 14th section of the act provides: " In every marriage hereafter contracted in this State, the rights of husband and wife shall be governed by this act, unless there is a marriage contract containing stipulations contrary thereto."
The record discloses that there was a marriage contract between the plaintiff and her husband, by which, notwithstanding the marriage, she was to have the entire management of her separate estate; that its rents and profits were also to be a part of her separate estate, as was also to be all property acquired by her after marriage, whether by purchase or otherwise.
It is now urged that the statute is in derogation of the common law, and must be strictly construed; that it confers no power on the wife to make contracts, and therefore she took nothing by her purchase from Palmer, Cooke & Co., or it enured to the benefit of her husband.
The 14th section of the act before cited certainly confers upon parties an unlimited right to make before marriage whatever stipulations they may agree upon, in respect to property; and it is not confined to property in esse, because, as many of the provisions of the act refer to property to be acquired, and to the rents or profits of the present estate, it follows that it must contemplate a departure from these provisions by express contract, as well as from any other.
At common law, the separate estate of a married woman was usually, if not always, created by the interposition of a trustee; and the trustee had power, either by the terms of the covenant or under the direction of the Court of Chancery, to invest all money arising from the rents and profits of the trust estate, when no other application of it was more beneficial to the wife.
In such cases, the rents and profits are always treated as part of the separate estate; and we see no reason why that which was the rule at common law should not be allowed as a proper stipulation in a marriage contract under our statute. But the question arises, is the law altered which deprives a married woman of the right to make contracts?
This is a question involving some embarrassment, and I have given it much deliberation. My first conclusion was that in dealing with separate estates, our statute intended to abolish altogether the formality of interposing trustees, but by giving it the strict construction which is required by the rules of law, I am now satisfied that such interposition is only rendered unnecessary in respect to the property specified by the act. In all other respects, the common law remains unaltered. The wife is not given the power to make contracts, nor is such power necessary for the preservation of any portion of what is, or what may become, her separate estate. She may still resort to the use of a trustee for all purposes of security; or, if her husband should purchase or invest with the rents and profits of her estate, he will be held to account for her benefit in the same manner, and to the same extent, as if he had undertaken a specific trust.
It follows, from this view of the question, that the plaintiff had no authority to enter into the contract declared upon with the defendant, so as to entitle her to bring suit in her own name, and the judgment must be affirmed, with costs.