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.
If a married woman invokes coverture as a defense to an executory contract,1 or a means of recovering what she has parted with under an executed contract,2 she is liable for whatever she has received under such contract.3 Thus a married woman to obtain a loan gave her note payable to her husband, who indorsed it over to the creditor. The note itself was held to be void, as being a contract between husband and wife ;4 but recovery of the amount so loaned was allowed in assumpsit.5 In some jurisdictions, no personal liability exists against her if the contract is void, and the only remedy of the adversary party is an action in rem against the money received by her under the contract or against any property into which it can be traced.6 If the money was paid to her husband and it is not shown to have been paid over to her, she is not liable for it on avoiding her contract.7 She cannot retain the property conveyed to her and avoid having the purchase money collected by a sale of such property therefor.8
11 Lackey v. Boruff, 152 Ind. 371; 53 N. E. 412.
12 Lackey v. Boruff, 152 Ind. 371; 53 N. E. 412.
1 National Granite Bank v. Tyn-dale, 17G Mass. 547; 51 L. R. A. 477; 57 N. E. 1022; Willock's Estate, 165 Pa. St. 522; 30 Atl. 1043; Bucknor's Estate. 136 Pa. St. 23; 20 Am. St. Rep. 891; 19 Atl. 1069.
2 Pilcher v. Smith, 2 Head. (Tenn.) 208.
3 Contra, where her acknowledgment to the conveyance of her separate estate was not taken as pro-Aided by law. Silcock v. Baker,
25 Tex. Civ. App. 503; 61 S. W. 939.
4 National Granite Bank v. Whicher, 173 Mass. 517; 73 Am. St. Rep. 317; 53 N. E. 1004.
5 National Granite Bank v. Tyn-dale, 176 Mass. 547; 51 L. R. A. 447; 57 N. E. 1022.
6 Smith v. Ingram, 130 N. C. 100; 61 L. R. A. 878; 40 S. E. 984.
7 McKinney v. Street, 107 Tenn. 526; 64 S. W. 482.
8 Kennedy v. Harris, 3 Ind. Ter. 487; 58 S. W. 567; Blantz v. Bain, 95 Tenn. 87; 31 S. W. 159.