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.
The intermarriage of the parties to a contract discharged the contract at Common Law.1 The reason for this rule is to be found in the result of marriage at Common Law. The husband could if he wished make his wife's choses in action, which would include her contract rights, his own. The operation of the doctrine of merger would therefore discharge the contract. Furthermore, at Common Law, husband and wife could not contract with each other. The co-operation of these two principles made marriage operate as a discharge. The effect of statutes giving to a married woman the power to bind herself by contract and making her property her own after marriage, depends upon the subject-matter of the contract. A contract between husband and wife for personal services is contrary to public policy,2 and such a contract is merged and extinguished by the marriage of the parties.3 Other contracts are, under such statutes, according to the weight of authority, not discharged by marriage.4 An ante-nuptial contract is not invalidated by the intermarriage of the parties.5 An indebtedness in favor of the woman,6 or a judgment,7 or an indebtedness secured by mortgage,8 are none of them discharged by her inter-marriage with the debtor, even under a statute authorizing the husband to manage the wife's property.9 In some states, however, such a contract, as a debt secured by mortgage,10 is discharged by the intermarriage of the debtor and the creditor.
4 Bolles v. Crescent Drug, etc., Co., 53 N. J. Eq. 614; 32 Atl. 1061.
1 Dillon v. Dillon (Ky.). 69 S. W. 1099; Chapman v. Kellogg, 102 Mass. 246; Burleigh v. Coffin, 22 N. H. 118; 53 Am. Dec. 236; Smiley v. Smiley, 18 O. S. 543; and see obiter, Flenner v. Flenner, 29 Ind. 564; Barton v. Barton, 32 Md. 214.
2 See Sec. 426.
3 In re Collister, 153 X. Y. 294: 60 Am. St. Rep. 620; 47 N. E. 268.
Contra, Carlton v. Carlton, 72 Me. 115; 39 Am. Rep. 307.
4 Henneger v. Lomas,' 145 Ind 287; 32 L. R. A. 848; 44 N. E. 462; Power v. Lester, 23 N. Y. 527.
5Hudnall v. Ham, 183 111. 486; 75 Am. St. Rep. 124; 48 L. R. A. 557; 56 N. E. 172.
6 Barton v. Barton, 32 Md. 214.
7 Flenner v. Flenner. 29 Ind. 564.
8Bemis v. Call, 10 All. (Mass.) 512; Power v. Lester, 23 N Y. 527.