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.
A party can not make a promise to himself,1 and he can not be indebted to himself or under any obligation to himself which the law will recognize and enforce. Accordingly, if a valid obligation has been entered into, and subsequently the promisor acquires the interest of the promisee, such transfer of the promisee's interest to the promisor operates ordinarily as a merger or extinction of the original liability.2
Texas. Pegues v. Haden, 76 Tex. 94, 13 S. W. 171; Jones v. Gilchrist, 88 Tex. 88, 30 S. W. 442.
Utah. Johnson v. Geddes, 49 Utah 137, 161 Pac. 910.
Wisconsin. Chicago, M. & St. P. Ry. Co. v. Jewett. 169 Wis. 102, 171 X. W. 757.
2 See ch. LXIX.
1 Skinner v. Christie. 52 N. J. Eq. 720, 29 Atl. 772.
2Daly v. Bernstein, 6 N. M. 380, 28 Pac. 764.
3 Gates v. Moldstad, 14 Wash. 419, 44 Pac. 881.
1 See Sec. 1568.
2 Alabama. Owings Lumber Co. v. Marlowe, - Ala. - , L. R. A. 1918E, 155, 76 So. 926 (obiter).
Indiana. Oosnell v. Jones, 152 Ind. 638, 53 N. E. 381.
Kansas. Security State Bank v. Clarke, 99 Kan. 18, 160 Pac. 1149.
Kentucky. Farley v. Farley, 91 Ky. 497, 16 S. W. 129: Dillon v. Dillon (Ky.), 69 S. W. 1099.
Massachusetts. Chapman v. Kellogg, 102 Mass. 246.
Missouri. Rogers v. Wolfe, 104 Mo. 1, 14 S. W. 805.
At common law a marriage operated to some extent as a merger of the legal personality of both husband and wife. While this is sometimes spoken of as a legal merger of her personality, since the husband was in effect the managing agent of the new personality, the effect of marriage upon his personality was as well settled as its effect upon the personality of the woman, although the effects of such merger of personality were more frequently involved in the case of the wife than in the case of the husband. By reason of this merger of legal personality, neither of them could maintain an action at law against the other. Furthermore, at common law, upon marriage, the husband became the absolute owner of the wife's choses in possession, except her wearing apparel and the like; and he acquired a right to reduce her choses in action to possession and thus to make them his own. If, when the law was in this situation, a man married a woman to whom he was indebted, the law was obliged to hold either that the marriage operated as a merger or extinction of the debt, or else to deny to the husband under such circumstances the ordinary property rights which it gave to the husband in ordinary cases, since the only way in which the husband could reduce his own debt to possession would be by bringing an action against himself and compelling payment by himself to himself. As between these two theories, the law took the position that the marriage of a debtor to a creditor operated as a merger or extinction of the debt.3 This was not merely a suspension of the debt, for the debt did not revive on divorce,4 or on the death of the husband,5 even if the husband died before the debt had become due and payable.6
Even where the common-law rules were in force, however, equity did not regard marriage as discharging a contract made in contemptation of marriage.7 An ante-nuptial contract is not invalidated by the intermarriage of the parties.8 If a husband has settled his wife's property on her by a marriage settlement, the marriage does not operate as a discharge of a debt due to her from a partnership of which he is a member.9
New Hampshire. Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dee. 236.
Ohio. Smiley v. Smiley, 18 O. S. 543.
Tennessee. Schilling v. Darmody, 102 Tenn. 43ft, 73 Am. St. Rep. 802, 52 S. W. 201.
See also obiter in Flenner v. Flenner, 20 Ind. 564, and Barton v. Barton. 32 Md. 214.
3 Gosnell v. Jones, 152 Ind. 638. 53 N. E. 381; Farley v. Farley. 01 Ky. 407, 16 S. W. 120; Dillon v. Dillon (Ky.), 60 S. W. 1000; Chapman v. Kellogg, 102 Mass. 246; Rogers v. Wolfe,
104 Mo. 1. 14 S. W. 805; Burleigh v Coffin, 22 N. H. 118, 53 Am. Dec. 236; Smiley v. Smiley, 18 O. S. 543; Schilling v. Darmody, 102 Tenn. 430. 73 Am. St. Rep. 892, 52 S. W. 201.
See also obiter in Flenner v. Flenner. 20 Ind. 564, and Barton v. Barton. 32 Md. 214.
4Farley v. Farley, 01 Ky. 407, 16 S W. 120.
5Suttles v. Whitlock, 20 Ky. (4 T. B. Mon.) 451.
6 Fox v. Johnson, 4 Del. Ch. 580.
The greater part of the common-law theory of the effect of marriage upon the legal personality of the parties thereto, and upon the property rights, seems to be at variance with modern ideas. On the one hand, it is felt to be unfair to compel the husband to pay his wife's ante-nuptial debts, and on the other hand, it is felt that she should control her property after marriage in the same way in which she controlled it before marriage. This feeling has expressed itself in legislation which, while varying in detail, provides in a general way that the husband shall be under no responsibility for his wife's ante-nuptial debts, and that the married woman shall control her property as if she were unmarried. Under such statutes the marriage of a debtor and creditor do not affect the obligation of the prior indebtedness,10 even in jurisdictions in which husband and wife can not enter into a contract with one another after marriage.11 An indebtedness in favor of the woman,12 such as an indebtedness secured by mortgage,13 or a judgment,14 are none of them discharged by her intermarriage with the debtor, even under a statute authorizing the husband to manage the wife's property.15 Even if she could not have brought an action against her husband during coverture, she can enforce such debt after coverture is ended,16 as by divorce.17
7Hudnall v. Ham, 183 111. 486, 75 Am. St. Rep. 124, 48 L. R. A. 557, 56 N. E. 172; Bennett v. Read, 51 Tenn. (4 Heisk.) 440.
8 Hudnall v. Ham, 183 111. 486, 75 Am. St. Rep. 124, 48 L. R. A. 557, 56 N. K. 172.
9 Bennett v. Read, 51 Tenn.(4 Heisk:) 440.
10 Arkansas. McKie v. McKie, 11 Ark. 68, L. R. A. 10151), 1126, 172 S W. 801.
Maine. Carlton v. Carlton, 72 Me. 115, 30 Am. Rep. 307.
Massachusetts. Butler v. Ives, 13 Mass. 202, 20 N. E. 654 [disapproving Chapman v. Kellogg. 102 Mass. 246, and Abbott v. Winchester, 105 Mass. 115]; Spooner v. Spooner, 155 Mass. 52, 2 N. E. 1121; MacKeown v. Lacey, 204 Mass. 437, 21 L. R. A. (N.S.) 683, 86
N. E. 700; Delval v. Gagnon, 213 Mass 203, 00 X. E. 1005.
New York. Power v. Lester, 23 N. Y. 527.
Vermont. Spencer v. Stock well, 76 Vt. 176, 56 Atl. 661.
11Butler v. Ives, 130 Mass. 202, 20 N. E. 654 [disapproving, Chapman v. Kellogg, 102 Mass. 246, and Abbott v. Winchester, 105 Mass. 115]; Spooner v. Spooner, 155 Mass. 52, 28 N. E. 1121; MacKeown v. Lacey, 200 Mass. 437, 21 L. R. A. (N.S.) 683, 86 N. E. 700; Delval v. Gagnon, 213 Mass. 203, 00 N. E. 1005.
12 Barton v. Barton, 32 Md. 214; Carl ton v. Carlton, 72 Me. 115, 30 Am. Rep 307; Power v. Lester. 23 N. Y. 527.
13Bemis v. Call, 02 Mass. (10 All.) 512; Power v. Lester, 23 N. Y. 527.
14Flenner v. Flenner, 29 Ind. 564.
A statute which provides that the personal property of the wife shall not be affected by her marriage, is held not to change the remaining common-law consequences of marriage upon the legal personality of the parties; and, accordingly, the marriage to her creditor of a woman who is indebted, operates as a merger or extinction of the original indebtedness;18 and an assignee who claims under an assignment from the husband after marriage, can not enforce such debt.19
Statutes which preserve the property rights of a married woman, are held not to affect executory contracts between herself and her future husband: and while the marriage does not extinguish his indebtedness to her for services rendered before marriage20 it merges or extinguishes a continuous contract of employment,21 even if such employment requires services which are not necessarily involved in the duty of a wife to her husband,22 such as services as a law clerk.23