
    The Y. & O. Coal Co. v. Paszka.
    
      Husband and wife — Husband not liable for antenuptial debts of wife — Husband’s debtor cannot apply obligation towards payment of wife’s debt.
    
    The common-law liability of the husband for the antenuptial debts of his wife has been annulled by the legislation of this state, and a debtor of the husband cannot apply the debts due the husband to the payment of the ante-nuptial debts of his wife.
    Husband and Wife, 30 C. J. §§ 119, 713.
    (Decided May 22, 1925.)
    Appeal: Court of Appeals for Jefferson county.
    
      Mr. Geo. Cooke and Mr. Gordon D. Kinder, for plaintiff in error.
    
      Mr. R. L. Buchanan, for defendant in error.
   Pollock, J.

The defendant in error brought an action against the plaintiff in error, before a justice of the peace of this county, to recover the sum of $65. The action was tried in that court and. afterwards appealed to the court of common pleas. The action was tried in the court of common pleas and resulted in a judgment in favor of the plaintiff below.

It appears from the pleadings and the agreed statement of. facts that plaintiff below was an employe of the defendant company, and that the company had retained $65 out of the wages earned by plaintiff. The defendant admits the employment and admits that it did not pay a balance of $65 of the wages earned by Paszka. It further appears that, prior to Paszka’s marriage, his wife was indebted to the defendant coal company for rent, and on a store account in a sum far greater than $65, and that the coal company had applied the sum of $65 of his wages in payment on this antenuptial debt of the wife.

The only issue to be determined in this case is whether the present legislation has relieved the husband from his common-law liability for the antenuptial debts of his wife; the defendant in error claiming that under the Code provision in the chapter under the head of “Husband and Wife” she now has control of her own property, the same as though she were single, and that for that reason the common-law principle making the husband liable for the antenuptial debts of his wife no longer exists in this state.

The plaintiff in error, in answer to that proposition, calls the attention of the court to the case of Alexander v. Morgan, Root & Co., 31 Ohio St., 546, in which the Supreme Court holds:

“The husband, as between himself and the creditors of the wife, is liable for her antenuptial debts, including partnership debts — the legislation of this state concerning the rights and liabilities of married women, not having changed his common-law liability in this respect.”

Prior to the time the debt referred to in the ease before the Supreme Court was incurred, the Legislature had given the wife control over her own property. The legislative provision is found in 58 Ohio Laws, at page 54:

“Any estate or interest, legal or equitable, in real property belonging to any woman at her marriage, or which may have come to her during coverture by conveyance, gift, devise, or inheritance, or by purchase with her separate money or means, shall together with all rents and issues thereof, be and remain her separate property, and under her sole control.”

This act was again amended by the Legislature on March 30, 1871, 68 Ohio Laws, p. 48, as follows:

“That section two of the above recited act be so amended as to read as follows: Section 2. Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband.”

Under the above holding, these statutory provisions, giving the wife control of her property, do not relieve the husband of his marital obligations to third parties for the payment of his wife’s antenuptial debts.

The next legislation in regard to the subject is found in Section 3110, Revised Statutes (81 Ohio Laws, p. 209), passed April 14, 1884:

“The husband shall not be liable upon any cause of action existing against the wife at their marriage, nor for a tort committed by her during coverture, nor upon any contract made by her, except to the extent of any separate property of the wife acquired by him under an antenuptial contract, or otherwise.”

That section was repealed by the Legislature in March, 1887 (84 Ohio Laws, p. 136), and the husband and wife chapter was then passed, which has remained practically unchanged since that time. This chapter now begins with Section 7995, General Code. Section 7998 provides:

“Neither husband nor wife has any interest in the property of the other, except as mentioned in the next preceding section, the right to dower and to remain in the mansion house after the death of either, as provided by law; and neither can be excluded from the other’s dwelling, except upón a decree or order of injunction made by a court of competent jurisdiction.”

Section 7999 provides: “A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other.”

We then come to Section 8002: “Neither husband nor wife, as such, is answerable for the acts of the other.”

It is urged upon the part of the coal company that the husband’s liability for the antenuptial debts of his wife, under the common law, is not an act from which he is relieved by virtue of the provisions of this section.

Black defines an act as follows:

“In a more technical sense it means something done voluntarily by the person, and of such a nature that certain legal consequences attach to it.”

The common-law liability of the husband for the antenuptial debts of his wife does not attach by reason of the wife’s failure to pay, but he be^comes liable by reason of her contract prior to her marriage. The contraction of these debts to the coal company by the wife before her marriage was voluntary on her part, and certain legal consequences attached to her. Every contractual act of one person with another person is a voluntary act. The act which causes the liability of the husband, under the common-law principle, for the prior marriage indebtedness of his wife, was a voluntary act of his wife. When the Legislature of this state provided that neither husband nor wife, as such, is responsible for the acts of the other, it relieved the husband from his common-law liability for the acts of his wife whether before or after marriage.

There are other and further reasons for holding that the husband is not now liable for the ante-nuptial debts of his wife. In the opinion in the case of Alexander v. Morgan, supra, the Supreme Court, at page 548, said:

“At common law, the husband, during coverture, was liable for the antenuptial debts of his wife; not on the ground that by virtue of his marital rights he was entitled to the personal property owned by the wife at her marriage, for he was liable even if she did not bring him a shilling; but on the ground that the legal existence of the ■woman was suspended during the marriage, or rather, merged into that of the husband; and almost all the legal rights, duties, and disabilities that either of them acquired by the marriage, dependent upon the principle of a union of person in husband and wife.”

The Supreme Court, after declaring further that the common-law rule was not based upon the reason that the husband, upon marriage, acquired the property of his wife, said, at page 549:

“If, therefore, the common-law liabilities of the husband, in reference to the debts of his wife, have been changed or modified in this state, such change or modification is not to be deduced as a consequence of the removal of the common-law disabilities of married women over their separate property, but must be found, if at all, in legislation that either expressly, or by necessary implication, makes such change or modification.”

After this quotation, the Supreme Court says the only legislation that makes any change or modification of the liability of the husband for his wife’s debts is contained in the act passed April 3, 1861 (58 Ohio Laws, p. 54), as amended March 23, 1866 (63 Ohio Laws, p. 47), which reads as follows:

“In any action against husband and wife upon any cause existing against her at their marriage, or upon any tort committed by her during coverture, or upon any contract made by her concerning her separate property, as provided for in section one of this act, the separate property of the wife shall be also liable to be taken for any judgment rendered therein.”

The Supreme Court did not base the common-law liability of the husband for the debts of his wife upon the fact that he acquired the property rights of his wife, but because, upon their marriage, the legal rights and liabilities of the wife were merged in the husband.

At the time the Alexander ease was before the Supreme Court, while there had been some change in the common-law principles regarding the legal rights and liabilities of the wife after the marriage, the creditor could not bring an action against her after her marriage for her premarriage indebtedness. The Legislature at that time had provided (71 Ohio Laws, p. 47):

“Where a married woman is a party, her husband must be joined with her, except that when the action concerns her separate property, or is upon a written obligation, contract or agreement signed by her, or is brought by her, to set aside a deed or will; or if she be engaged as owner or partner in any mercantile or other business, and the cause of action grows out of or concerns such business; or is between her and her husband, she may sue and be sued alone. And in all cases where she may sue or be sued alone, the like proceedings shall be had and the like judgment rendered and enforced in all respects as if she were an unmarried woman.”

The actions under this legislation permitting the wife to be sued without joining her husband with her did not include antenuptial indebtedness.

The indebtedness involved in the case of Alexander v. Morgan was a premarriage partnership indebtedness. The Supreme Court, in the opinion in that case, page 551, guards against applying the principle therein to indebtedness of the wife for which she had been made liable by a direct action against her:

“We are not to be understood as saying that the husband is liable for the debts of the wife contracted during coverture in a partnership business that she is assisting in carrying on with her separate money and means, and in which her husband has no interest or control. This question is not before us.”

Since then the Legislature of this state has provided that the wife can sue and be sued as if unmarried. This legislation was first placed in the statutes in 1884, 81 Ohio Laws, p. 65. This act also provided that a judgment obtained against the wife should be collectible as judgments against other parties are collected. These provisions are now Sections 11245 and 11591 of the General Code, which read as follows:

“Section 11245. A married woman shall sue and be sued as if she were unmarried, and her husband be joined with her only when the cause of action is in favor of or against both.”

“Section 11591. When a married woman sues or is sued, like proceedings shall be had and judgment rendered and enforced as if she were unmarried. Her property and estate shall be liable for a judgment against her, but she shall be entitled to the benefits of all exemptions to heads of families.”

By the legislation of this state the wife’s property is now relieved of the husband’s control, and he is not answerable for her acts; but she alone can be sued and beld responsible for her own contracts. A judgment recovered against her can be collected as if she were a feme sole.

Under the present statutory provisions the husband is relieved of the common-law obligation for his wife’s antenuptial debts, and defendant therefore could not lawfully apply the wages due the defendant to the payment of the antenuptial debts of his wife.

Judgment affirmed.

Roberts and Farr, JJ., concur.  