
    G. W. Offutt & Bro. vs. Margaret E. Dangler.
    Law.
    No. 26,730.
    Decided November 8, 1886.
    The Chief Justice and Justices Cox and Merrick sitting.
    In a suit instituted under the Married Woman’s Act against a married woman, the declaration or complaint should show that she is a married woman having a separate estate, and that she has, by reason Of some contract having relation to it, become liable to satisfy a judgment against her out of that estate; the judgment against her is not a personal one purely, but one to be satisfied out of her separate estate, and the record should show this ; otherwise the judgment is void.
    Appeal from the granting of a motion to quash an attachment issuing upon a judgment rendered by a justice of the peace.
    The Case is stated in the opinion.
    Joseph J. Waters for plaintiffs:
    A suit at law intending to seize, lien, sell, possess or transfer title to any part of a married woman’s separate estate, is a “ matter having relation to her separate estate,” even though the suit be without foundation, and such “matters” are not restricted to contracts. Hence she can and should defend herself against a debt, a replevin, or an ejectment suit; and if she does not, judgment can be taken against her by default as against an unmarried woman. And as a married woman can convey and create a lien upon her separate estate (Solomon vs. Garland, 2 Mackey, 113), so she can give a lien by giving judgment by default, or by confession.
    The existence of a separate estate need not be alleged; it is sufficient if proved. Fiske vs. Bigelow, 2 Mac A., 433.
    And it makes no difference whether the estate be legal or equitable. Stewart vs. Smith, 3 Mackey, 281.
    For authorities sustaining judgments against married women, see Schouler, Iiusb. and Wife, p. 289; Freem. Judg., 3d ed., secs. 149, 150.
    Francis Miller and Guión Miller for defendant:
    “Except in regard to the separate property of a feme covert, all her covenants, contracts and agreements, in courts of law as well as of equity, are absolutely null and void, and she is under no obligation, and cannot be compelled to perform them.” Burton vs. Marshall, 4 Gill, 481; Schneider vs. Garland, 1 Mackey, 350; Norris vs. Lantz, 18 Md., 269; McDermott vs. Garland, 1 Mackey, 496; Six vs. Shaner, 26 Md., 443; Steffey-ys. Steffey, 19 Md., 12; Nuszws. Grove, 21 Md., 400; Gebb vs. Rose, 40 Md., 393.
    “A judgment against a married woman before a justice of the peace, which does not affirmatively show her liability on a contract within the statute, is invalid; and a sheriff’s sale on an execution issued upon a transcript of such judgment in the common pleas, confers no title upon the vendee.” Hecker vs. Haak, 88 Pa., 241; Canal Bank vs. Partee, 99 U. S., 325-334; Rodemeyer vs. Rodman, 5 Iowa, 421; Lewis vs. Perkins, 36 N. J. Law, 133; McGlaughlin vs. O’Rourke, 12 Iowa, 461; Cary vs. Dixon, 51 Miss., 593; Mallett vs. Parham, 52 Miss., 921.
    “ The principle that a party cannot impeach a judgment on any ground that might have been pleaded or relied on as a defence to the suit, does not apply to a case where the defendant is a feme covert and not sui juris.” Griffith vs. Clarke, 18 Md,, 457; Caldwell vs. Walters, 18 Pa., 79; Higgins vs. Peltzer, 49 Mo., 152; Swayne vs. Lyon, 67 Pa., 436; Burton vs. Marshall, 4 Gill, 493; Brunner’s App., 47 Pa., 67; Cary vs. Dixon, 51 Miss., 593; Bowman vs. Kaufman, 30 La. Ann., 1021.
    Where a court “acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them.’’ Elliott vs. Peirsol, 1 Pet., 340; Thompson vs. Whitman, 18 Wall., 457; Williamson vs. Berry, 8 How., 540; Wilcox vs. Jackson, 13 Pet., 511; Webster vs. Reid, 11 How., 459.
    On the record in this case, the appeal must be dismissed in any event. The third ground for quashing the attachment is “for other defects apparent on said attachment.” Now the attachment itself is not made a part of the record, and as this court cannot go outside of this record, it cannot say that the court below did not quash the attachment because of defects apparent on its face,
   Mr. Chief Justice Cartter

delivered the opinion of the court.

The plaintiffs, who were grocers doing business in this District, brought their action against Mrs. Margaret E. Dangler before a justice of the peace, to recover for groceries supplied to her, amounting to $24. The summons was issued and served, and, there being no appearance, judgment was taken by default. Upon that judgment an attachment was issued against the credits of the defendant. Thereupon a motion was made to quash the attachment, which was granted, and an appeal was taken to this court. Whether the motion should prevail or not depends entirely upon the validity of the judgment obtained against Mrs. Dangler. If the judgment was valid, the process upon it by attachment must be sustained. On the other hand, if the judgment is void, void so as to be worthless even in a collateral proceeding, the process in attachment cannot be supported.

It is not denied that at the time the judgment was obtained the defendant was a married woman and had a husband living; but it is claimed that she had a separate estate, and that with regard to it she is to be treated as a feme sole, and may be sued as if she were such.

But the chief, and in fact the only difficulty in the case, is that there is nothing whatever in the record to show the character in which the defendant was sued. The plaintiffs came into court asking judgment against a married woman, without an explanation descriptive of her position as to her property, and a judgment was given them. It is true that disabilities are generally to be presented by the defendant in the pleadings; that they are to be set up as matter of defence, and that it is not ordinarily necessary to anticipate such defence in the complaint or declaration. But by the weight of modern authority, suits against married women, in respect of their separate estate, have been treated as an exception to this general rule; and it is held that there ought to be a 'manifestation of the character in which the defendant is sued.

We think that this exception to the general rule of pleading must prevail in this court. A feme covert may, under certain circumstances, be sued under our statute as though she were a feme sole; and it seems reasonable to require that the facts necessary to support this statutory right of action against her should appear in the record. The declaration or complaint should show that she is a married woman having a separate estate, and that she has, by reason of some contract having relation to it, become liable to satisfy a judgment against her out of that estate. The judgment against her is not a personal one purely, but one to be satisfied out of her separate estate; and the record should show this; otherwise the judgment is void and may be so treated whenever it is met.

It is not contended that the record here shows anything of this sort, and therefore the ruling of the court below quashing this attachment must be affirmed.  