Only the married woman can take advantage of coverture as a defense.1 Thus under a statute forbidding a married woman to act as surety only she or her privies in blood representation or estate can interpose coverture as a defense.2 The husband or those claiming under him cannot plead her coverture.3 So the adversary party to the contract cannot avoid the contract on the ground of coverture if the married woman offers to perform.4 Thus if she has agreed to convey realty, and tenders a valid deed,5 the adversary party cannot interpose the objection of her original lack of capacity. So he cannot recover payments made by him under such contract.6 If she has performed and cannot be placed in statu quo she may have specific performance.7 So after she has performed, the adversary party is liable for the payments stipulated in the contract.8

Am. St. Rep. 707; 52 Atl. 681. (Delay for three years.)

1 Sellmeyer v. Welch, 47 Ark. 485; 1 S. W. 777; Johnson v. Jones, 51 Miss. 860; Gould v. McFall, 118 Pa. St. 455; 4 Am. St. Rep. 606; 12 Atl. 336; Pitts v. Elser, 87 Tex. 347; 28 S. W. 518.

1 Strauss v. Glass, 108 Ala. 546; 18 So. 526; Rogers v. Shewmaker, 27 Ind. App. 631; 87 Am. St. Rep. 274; 60 N. E. 462; Smoot v. Judd, 161 Mo. 673; 84 Am. St. Rep. 738; 61 S. W. 854.

2 Smoot v. Judd, 161 Mo. 673; 84 Am. St. Rep. 738; 61 S. W. 854.

3 Strauss v. Glass, 108 Ala. 546; 18 So. 526.

4 Warner v. Hess, 66 Ark. 113; 49

S. W. 489; Emmett v. Yandes, 60 Ind. 548; Westervelt v. Baker, 56 Neb. 63; 76 N. W. 440; citing and following, Grand, etc., Co. v. Wright, 53 Neb. 574; 74 N. W. 82; Moore v. Wolfe, 122 N. C. 711; 30 S. E. 120; Koechling v. Henkel, 144 Pa. St. 215; 22 Atl. 808; Hecker v. Haak, 88 Pa. St. 238; Duval v. Chef, 92 Va. 489; 23 S. E. 893.

1 Jones v. Harrell, 110 Ga. 373; 35 S. E. 690; Hawes v. Favor. 161 111. 440; 43 N. E. 1076; Lackey v. Boruff, 152 Ind. 371; 53 N. E. 412; Slagle v. Hoover, 137 Ind. 314; 36 N. E. 1099.

2 Lackey v. Boruff, 152 Ind. 371; 53 N. E. 412.

If, however, the contract is executory on both sides, and the promise of the married woman is the sole consideration for the promise of the adversary party, no consideration exists for such promise of the adversary party, where the promise of the married woman is void. In cases of this sort, the adversary party does not use coverture as a defense; but there is no consideration and hence no contract.9

3 Slagle v. Hoover, 137 Ind. 314; 36 N. E. 1099.

4 Hawes v. Favor, 161 111. 440; 43 N. E. 1076; Carpenter v. Mitchell, 54 111. 126; Holmes v. Holmes, 107 Ky. 163; 92 Am. St. Rep. 342; 53 S. W. 29.

5 Holmes v. Holmes, 107 Ky. 163; 92 Am. St. Rep. 342; 53 S. W. 29. (She was a feme covert when the contract was made, but discovert when the deed was tendered.)

6 Keystone Iron Co. v. Logan, 55 Minn. 537; 57 N. W. 156.

7 Richards v. Doyle, 36 O. S. 37; 38 Am. Rep. 550.

8 Lindsey v. Lindsey, 116 Ia. 480; 89 N. W. 1096. (In this case she had authority to contract for her own services. She was living with her husband, and contracted with a third party to furnish board to his employees. It was held that a settlement between such third person and her husband could not discharge her liability.)

9 Shirk v. Stafford, 31 Ind. App. 247; 67 N. E. 542.