This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
At Common Law a contract of suretyship by a married woman was void, like her other contracts. Where she has a separate estate, either at equity or by statute her contracts of suretyship are valid except in jurisdictions in which her power over her separate estate is limited to that expressly conferred upon her or necessarily implied from the nature of her estate.1 So where the statute authorizing her to contract with reference to her separate estate is construed to apply only to contracts beneficial to her estate, she cannot act as surety.2 Under such view of
5 Stacey v. Walter, 125 Ala. 291; 82 Am. St. .Rep. 235; 28 So. 89.
6 Farmers' Exchange Bank v. Hageluken, 165 Mo. 443; 65 S. W. 728; or her equitable interest, Cadematori v. Gauger, 160 Mo. 352; 61 S. W. 195.
7 Security Bank v. Holmes, 68 Minn. 538; 71 N. W. 699.
8 Moore v. Graves, 97 Ia. 4; 65 N. W. 1008. This is by force of a special statute that a spouse joining in a covenant of warranty in a deed conveying the realty of the other is not bound personally unless the deed so states expressly.
9 Village of Western Springs v. Collins, 98 Fed. 933; 40 C. C. A. 33.
10 Penny v. Mortgage Co., 132 Ala. 357; 31 So. 96.
1 See Sec. 911. Fredericktown Savings Institution v. Michael, 81 Md. 487; 33 L. B. A. 628; 32 Atl. 189, 340; Binney v. Bank, 150 Mass. 574; 6 L. R. A. 379; 23 N. E. 3S0; Major v. Holmes. 124 Mass. 108; Metropolitan Bank v. Taylor, 62 Mo. 338; Lincoln v. Rowe, 51 Mo. 571.
2 Kohn v. Collison. 1 Marv. (Del.) 109; 27 Atl. 834; Wright v. Parvis, the statute a contract of suretyship for her husband is void, though given for property which will make his estate more valuable and thereby increase her share in his estate if she survives him. The consideration moving to her is too remote.3 As with other contracts, in some jurisdictions her contract of suretyship prima facie binds her separate estate,4 in others it binds her separate estate if specifically charged thereon;5 but otherwise not.6 Under statutes conferring general power to contract, a contract of suretyship is valid.' Thus a statute authorizing a married woman to give a bond with or without a warrant of attorney, as if she were a feme sole, includes a bond to secure the debt of her husband or another.8 Under a decree allowing a married woman to contract as a feme sole she can act as surety ;9 but apparently not under a decree of less etc., Co., 1 Marv. (Del.) 325; 40 Atl. 1123; Jaeckel v. Pease, 6
(Ida.) 131; 53 Pac. 399; Guy v. Liberenz, 160 Ind. 524; 65 N. E.
186; Magoffin v. Bank (Ky.), 69 S. W. 702; De Vries v. Conklin, 22 Mich. 255; Ott v. Hentall, 70 N. H. 231; 51 L. R. A. 226; 47 Atl. 80; Mueller v. Wiese, 95 Wis. 381; 70 N. W. 485.
3 Bishop v. Bourgeois, 58 N. J. Eq. 417; 43 Atl. 655.
4 Miller v. Brown, 47 Mo. 504; Kimm v. Weippert, 46 Mo. 532; Moeckel v. Heim, 46 Mo. App. 340; Williams v. Urmston, 35 O. S. 296; 35 Am. Rep. 611; Williamson v. Cline, 40 W. Va. 194; 20 S. E. 917.
5 Kershaw v. Barrett (Neb.), 90 X. W. 764; Briggs v. Bank, 41 Neb. 17; 59 N. W. 351; Smith v. Spalding, 40 Neb. 339; 58 N. W. 952; Spatz v. Martin, 46 Neb. 917; 65 N. W. 1063; First National Bank v. Stoll. 57 Neb. 758; 78 N. W. 254; Webster v. Helm, 93 Tenn. 322; 24 S. W. 488.
6 Union, etc., Bank v. Coffman, 101 Ia. 594; 70 N. W. 693; Smith v. Bond, 56 Neb. 529; 76 N. W.
1062; Eckman v. Scott, 34 Neb. 817; 52 N. W. 822.
7 Binney v. Bank, 150 Mass. 574; 6 L. R. A. 379; 23 N. E. 380; State Bank v. Maxson, 123 Mich. 250; 81 Am. St. Rep. 196; 82 N. W. 31 (under Kansas statute); King v. Hansing, 88 Minn. 401; 93 N. W. 307; Grandy v. Campbell, 78 Mo. App. 502; Cooper v. Bank,
4 Okla. 632; 46 Pac. 475; Colonial Etc., Co. v. Stevens, 3 N. D. 265; 55 N. W. 578; Miller v. Purchase,
5 S. D. 232; 58 N. W. 556; Colonial, etc., Co. v. Bradley, 4 S. D. 158; 55 N. W. 1108; First, etc., Bank v. Leonard, 36 Ore. 390; 59 Pac. 873; distinguishing Knoll v. Kiessling, 23 Ore. 8; 35 Pac. 248. and Campbell v. Snyder, 27 Ore. 249; 41 Pac. 659. as cases where the wife could, under the law then in force, bind only her separate estate and not herself personally. Bitter v. Bruss, 116 Wis. 55; 92 N. W. 361.
8 Warder, etc., Co. v. Stewart, 2 Marv. (Del.) 275; 36 Atl. 88.
9 Sypert v. Harrison. 88 Ky. 461 : 11 S. W. 435; Skinner v. Carr extensive scope.10 Statutes specifically forbid a married woman to act as surety in some jurisdictions for any person; and in some others, for her husband,11 and it is really because of these statutes that contracts of suretyship must be considered apart from other contracts. Where she cannot be surety for her husband, she is not liable on a note of a firm of which her husband is a member.12 Under such statutes the test of suretyship seems to be whether the married woman received anything of value for incurring the obligation.13 Her obligation is valid if she receives anything of value,14 as where it is for her own debt as a separate trader,15 or for her ante-nuptial debt,16 or for the discharge of liens on her property;17 even where the debt was primarily her husband's, as where without any intent of evading the statute the husband borrowed money, giving as security a mortgage on certain real estate which he afterwards transferred to his wife.18 So a covenant not to engage in a certain business in a certain city, in which a married woman joins with her husband on their selling their business and good will is valid ;19 as is her note given to take up her husband's note and prevent payee from attacking a transfer of property to her as in fraud of her husband's creditors ;20 or her note given to settle an action brought against her husband and herself, though the debt on which the action was brought was her husband's,21 or on a promise as principal jointly with her husband to reimburse a third person for paying her husband's debt,22 or a note given by a married woman as premium on an insurance policy taken out by her on her husband's life in his absence,23 or a note given by herself and her husband for money advanced by a third person to pay premiums on a policy on her husband's life in her favor.24 So she is liable on a promise to pay a debt incurred by him as her agent for her separate estate,25 or to pay his debt in consideration of a transfer of realty to her.26 It is even held that her promise to pay his debt secured by a mortgage is valid by reason of the benefit to her dower in the mortgaged lands.27 Her possible interest in her husband's personalty is too remote to constitute a benefit to her under this rule. Hence her promissory note given to pay his debt incurred in buying personalty is invalid.28 A note given by a married woman to secure a debt which is partly hers and partly her husband's is valid as to her own debt, though invalid as to her husband's.29 If under the contract she receives a thing of value she is liable though she incurs a liability greatly in excess thereof.30 The form of the contract is therefore immaterial. If the debt is the married woman's she is liable even if she appears on the contract as a surety.31 If the contract is made directly with the married woman and she acquires a thing of value thereby she cannot evade liability on the ground that she was really acquiring such property in order that her husband might have the use thereof, even if such purpose was known to the adversary party.32 If a loan is actually made to the wife she is liable even though she intends to and does apply the money to her husband's debts, or allows him to use it.33 So she is liable on a note to obtain a loan made to her, though with the knowledge of the lender she means to use the loan in paying a debt of her husband's.34 So a sale of her separate estate is valid, though the purchaser knows that she means to use the proceeds to pay her husband's debt, he not being a creditor of the husband.35 A married woman is liable on a contract of guaranty made as part of a contract of sale of a note owned by her, irrespective of the disposition of the proceeds.36 But a device to evade the statute meets with no support from the courts. Thus a wife who gives her note for money borrowed to pay her husband's debt is not liable where part of the agreement of the contract of lending was such use ;37 nor is she liable on a guaranty of a note assigned to her by her husband and re-delivered by her to him, where the lender knows that the husband is to use the money, in part, to pay a loan due the same lender.38 So one lending money to a husband on his wife's note, knowing that the husband is going to use the money to pay his debt, cannot recover.39 On the same principle business by a husband and wife jointly, as a means of making her liable as surety for his debts is not her separate business under the statute authorizing her to contract for her separate business.40 So if the money is paid to the husband and there is nothing to show what disposition was made of it, the wife is not liable,41 while if the husband takes it as her agent she is liable.42 The wife's liability as surety is not increased by her signing as an indorser.43 It has been held that where the loan is made to the husband, the wife is not liable as surety, even if he applies the money to the use of his wife's separate estate,44 or to necessaries for the family.45 Where on the face of the instrument the married woman does not appear as surety, some authorities hold that she cannot set up her suretyship against a bona fide holder for value ;46 others hold that she can.47 It seems to be held that she estops herself from denying the validity of her note by representing that the proceeds thereof are for her separate estate,48 as where the check given for the note is payable to her,49 or where she acquiesces in her husband's statement that the money is to be used in paying off a mortgage on the wife's property.50 A note by a husband and wife who are partners is valid as to her,51 or a note given to raise money for a corporation in which she is a stockholder,52 or medical services for her,53 or to cultivate a farm owned by her.54 A clause in a mortgage to the effect that the mortgagors will pay the note with interest does not bind a married woman who signs as mortgagor only.55