
    Richmond.
    Hirth v. Hirth.
    February 15, 1900.
    1. Mabbied Women—Contracts—Separate Estate—Pleading.—A married woman is now, as at common law, incapable of making a contract, unless she owns some separate estate at the time the contract is made, and a declaration which fails to aver such ownership is bad on demurrer.
    Error to a judgment of the Law and Equity Court of the city of Richmond, rendered April 12, 1899, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.
    
      Reversed.
    
    The opinion states the case.
    
      Leake & Carter and Wm. H. Sands, for the plaintiff in error.
    
      Christian & Christian and Davis & Davis, for the defendant in error.
   Harrison, J.,

delivered the opinion of the court.

The plaintiff in error insists that the court below erred in overruling her demurrer.

The declaration shows on its face that the promise sued on was made by a married woman, during coverture, to assume the’debt of her husband. The ground of the demurrer is that the deela-^ ration does not aver that the plaintiff in error owned separate estate at the time the promise sued on was entered into; the contention being that sucb an allegation is essential because sbe bad no power to make tbe alleged contract unless sbe did own separate estate. At common law a" married woman bad no power to contract; ber engagements were simply void. Tbis common law disability remains in full force in tbis State except so far as modified by statute. Tbe only power a married woman bas to contract is conferred by section 22'88 of tbe Code, wbicb is in these words:

“She may make contracts as if sole, in respect to such trade, business, labor, services, and her said separate estate, or upon the faith and credit thereof; and upon such contracts, and as to all matters connected with, relating to, or affecting such trade, business, labor, services, or separate estate, and upon contracts and liabilities made or incurred before her marriage, she may sue and he sued in the same manner, and there shall be the same remedies in respect thereof, for and against her and her said estate, as if she were unmarried.”

Tbis act does not confer upon a married woman power to contract generally. It limits sucb power to married women who have separate estates. Chapter 103 of tbe Code, relating to tbe separate estate of married women, was tbe result of serious consideration, and much labor on the part of its authors, and, as said by another, “ If tbe object of tbe revisors bad been to emancipate all married women from tbe disabilities of coverture there would have been no need of chapter 103 of tbe Code, but it might have been accomplished in a few brief sentences in one section.” See note to Dezendorf v. Humphreys, 3 Va. Law Reg., p. 797. We bold, therefore, that a married woman is now, as at common law, incapable of making a contract, unless sbe owns separate estate at tbe time tbe contract is made.

Tbe ownership of separate estate by a married woman being a prerequisite to tbe exercise by ber of any contractual power,' it follows that, in order to maintain an action at law upon a contract made by ber during coverture, it is necessary for tbe declaration, or other pleading filed in tbe cause, to aver that sbe not only made the promise sued on, hut to aver also such a state of facts as will show that her promise is such as, under the statute, she was authorized to make. Duval v. Chelf, 92 Va. 489.

The questions raised on the merits may be different on another' trial, and therefore should not be considered now.

Tor these reasons we are of opinion that the demurrer to the declaration should have been sustained. An order will therefore be entered reversing' the judgment, setting aside the verdict, sustaining the demurrer, and remanding the cause for a new trial, with leave to the defendant in error to amend her declaration.

Reversed.  