
    
      Moses Tuttle and wife v. Raphael Rembert.
    
    It is no defence to an action on a bond or note, that it is made payable to a married woman; nor can that objection prevail against a covenant made with a married woman by indenture, although it contain covenants on her part.
    A bond or covenant to a married woman will survive to her, if it be not assigned or reduced into possession by the husband, during his life.
    
      Before Mr. Justice Frost, at Georgetown, Bpring Term, 1847.
    By indenture, dated 5th September, 1835, the defendant bound to Susan Hawkins his slave Lydia, then two or three years old, as an apprentice, for the term of years. Susan Hawkins covenanted to feed and clothe the girl, and to teach her to sew. Before the expiration of the term, the defendant took possession of the slave; and this was an action of covenant, on the indenture, to recover damages. Susan Hawkins, at the date of the indenture, was the wife of-Hawkins. After his death, the plaintiff married his widow. She is joined in the action.
    The evidence was, that Lydia went into the possession of Susan Hawkins, and continued until July, 1845, when she ran away, and was discovered by plaintiffs in the possession of Mrs. Abrams. Lydia was demanded by the plaintiffs of defendant. He said he had possession, and had sold, or was going to sell her to Abrams, and claimed to exercise absolute property over her.
    A motion was made for a non-suit, on several grounds: That the wife of Tuttle should not have been joined in the action; that the indenture was void, having been made by a married woman, and defendant had no reciprocal remedy against her husband for breach of her contract: or that, if the indenture were valid, the interest in it vested in her first husband, Hawkins, jure mariti, and in his legal representative after his death, who alone could maintain an action on the indenture.
    The motion was refused, because the wife, being the meritorious cause of action, was properly joined ; and the defendant’s covenant in the indenture to Susan Hawkins was valid, notwithstanding her coverture, even though her reciprocal covenants were void; but defendant was not without remedy, because, on the implied assent of the husband to his wife’s covenant, from the possession of Lydia, he might be sued in assumpsit for the non-performance of the wife’s agreement, contained in the indenture. And it was further ruled that the indenture to Susan Hawkins was a chose in action, and her husband not having assigned, or otherwise constructively reduced the same into possession, it survived to his wife, and on her marriage with Tuttle, a right of action accrued to them jointly, for a breach of .the covenants of the defendant,contained in the indenture.
    The defendant renewed his motion for a non-suit or arrest of judgment, in the Court of Appeals, upon the following grounds:
    1st. Because his Honor erred in deciding that the covenant sued upon was a chose in action belonging to the wife, to which the marital rights of her first husband, Hawkins, had never attached; that the same survived to her upon his death, and that the legal right to it vested in the plaintiff, Tuttle, upon his intermarriage with her.
    2d. That as the said Susan was a femme covert at the time of the execution of the said covenant, the same was absolutely void, inasmuch as the defendant had no remedy for a breach of it, either as against the said Susan or either of her husbands.
    3d. That if the said covenant was valid at the time of its execution, then the legal right to it vested in Hawkins, the first'husband of the said Susan; and after his death, it then vested in his legal representatives. ■
    Munro, for the motion,
    cited Boozer v. Addison, 2 Rich. Eq. 173; 3 Stat. 545; Eddings v. Brotan, 1 Rich. 255: 1 Lee’s N. P. 653.
    Hunt, contra.
    
   Frost, J.

delivered the opinion of the Court.

The only points which have been urged in the argument are, that the defendant’s covenant is void, because made to a married woman; and if not void, that the interest in the covenant vested in Hawkins, the first husband of Mrs. Tuttle, jure mariti, and the action should have been brought by his legal representative.

It is no defence to an action on a bond or note, that it is made payable to a married woman, nor can that objection prevail against a covenant to pay money or to do any other act. But in this case it is said the defendant’s covenant is void, because the indenture contains reciprocal covenants by Mrs. Hawkins, for the breach of which the defendant could have no action. If this were a parol agreement, in which the mutual promises of the parties formed the consideration, to an action on the agreement, by Hawkins and wife, it might be objected that the agreement was void for want of consideration. But the deed imports a consideration, and the verdict shows that the plaintiffs have, in fact, kept the wife’s covenant. If they had not, the jury might have given to the defendant the benefit of the plaintiffs’ covenant, by finding a verdict for him. The defence has no merit that the defendant may break his covenant, not because the plaintiff and his wife have not kept their covenant, but because if hereafter they should neglect or refuse to do so, the defendant would have no action. This conclusion is not altogether true, for there may be a remedy against the husband, on the covenant of his wife, if he has received benefit from the covenant, as in the case of White v. Cuyler, 6 Term R. 176. A married woman, without any authority from her husband, engaged a servant, and agreed by deed to pay her so much a year. It was held the wife’s deed was void, but as the servant had performed the stipulated services, the husband was liable, in assumpsit; and the deed was admitted in evidence of the contract. No case has been shown to support the position that a covenant made to a married woman, by indenture, is void, if it contain covenants on her part. Disability is a personal defence. The infancy of the plaintiff is no defence to an action on a contract made with the infant. In Platt on Covenants, 113, the case of Farnham v. Atkins, 1 Sid. 446, is stated to have decided that, notwithstanding an action, will not lie against an infant apprentice, yet it may be maintained against the master or mistress, on the covenant entered into with the infant apprentice to find meat and drink. Such an indenture is not merely voidable, but void with respect to the infant, and cannot be distinguished from an indenture with a married woman.

The legal representative of Hawkins cannot demand damages for the breach complained of. A bond or covenant to a married woman will survive to her, if it be not assigned or reduced into possession by the husband during his life. The agreement in the indenture is, that Rembert should give to Mrs. Hawkins the services of the girl for a certain time, in consideration that Mrs. Hawkins, who was a milliner, should teach the girl to sew. The indenture could not have been assignable by Hawkins, for he could not, without breaking his wife’s covenant to teach the girl, have sold or transferred the girl to another, nor could Hawkins, by any act of appropriation, have divested the interest which his wife had in the services of the girl. He could possess the use of the girl and the profits of her labor during his life time, and that was all he could have. Besides, the breach complained of in this action occurred after Hawkins’ death, and his legal representative cannot maintain the action. The motion is refused.

The whole Court concurred.'

Motion refused.  