Opinion
December Term, 1849.
1. A married woman cannot make a contract with her husband, except through the intervention of a third person, to whom the duty of enforcing it, in her behalf, belongs. It must be by deed, to which she must be a party.
2. Where a man had enticed away another man's wife, and he and the husband entered into a written contract by which it was stipulated that the former should retain the wife and support her: Held, that this contract was against public policy, and, at all events, that the husband could rescind it by making a demand for the restoration of his wife, and, if this was refused, had a right to his action for the subsequent detention:
3. Held, that an action on the case will lie by the husband against one who entices away his wife.
APPEAL from the Superior Court of Law of WAKE, at Spring Term, 1848, Caldwell, J., presiding.
This was an action on the case to recover damages for enticing the wife of the plaintiff to leave him, and detaining her, whereby he lost her services and the comfort of her society. It appeared on his behalf that his wife left him in August, 1841, by the enticement of the female defendant, who lived with the defendant Armstead, and is the mother of the plaintiff's wife. She assigned, as a reason for it, that the plaintiff was lazy and did not provide for his family, and she did not wish her daughter to perish. And it also appeared that the plaintiff had a child by his wife before their separation, and that they continued to live with the defendants from August, 1841, up to the trial. In the spring of 1845, or, as a witness said, speaking at the trial, about three years ago, he went with the plaintiff to the house of the defendant to demand his wife and child; (531) that after some conversation between the plaintiff and the defendant Armstead, the plaintiff demanded of him the surrender of his wife and child; that the defendant said he could bring them forth by speaking one word, but he would not do it; and further said to the plaintiff that his wife would not live with him because he had advertised her.
On the part of the defendant it appeared that some time in the last of July or first of August, 1842, the plaintiff and defendant Armstead, through the intervention of one or two of their neighbors, entered into a written contract, in which it was agreed that the defendant Armstead should keep the wife and child of the plaintiff, and should raise, educate and provide for the child by giving it the portion of his property intended for its mother. And it was also provided in the contract that the plaintiff should be allowed to visit his wife and child, and remain with them not exceeding four or five days at any one time. It also appeared that the plaintiff had been at the house of the defendant in 1842 on one or two occasions before the written contract was entered into, and had said in reply to a message sent him by the defendant Armstead that he (the said defendant) could provide for his child better than he (the plaintiff) could; and as for his wife, he did not think they could get on together. After the written contract, the plaintiff was seen at the house of the defendant on several occasions. It also appeared that, after the written contract, the precise time not appearing, the plaintiff said he had sold his land; that he had understood his wife had a notion to come and live with him, but he did not wish her to do so. Through some of the witnesses it appeared that the plaintiff led somewhat of an itinerant life, and through others that he did not provide very well for his family. The child, as it appeared, was of tender years. The plaintiff's counsel insisted that the written contract was void, because contrary to public policy; that on the (532) demand of the plaintiff and refusal of the defendant to give up the wife, a distinct cause of action accrued, supposing there had been an assent on the part of the plaintiff. And the counsel also insisted that the defendants were liable for the original enticement and detention of the plaintiff's wife.
The court charged that all acts of enticement and detention of the plaintiff's wife, previous to 11 June, 1842, were barred by the statute of limitations, the writ not having been sued out till 11 June, 1845; that if the wife was detained by the defendants from the custody of the plaintiff and against his will, between 11 June, 1842, and the execution of the written contract, he would be entitled to recover damages on that part of the case. In relation to the written contract, the court charged that it was valid, and no demand on the part of the plaintiff for the surrender of his wife would give him a cause of action after the execution of the said agreement.
The jury returned a verdict for the defendant.
A new trial was moved for and refused, and the plaintiff appealed.
McRae and Busbee for plaintiff.
H. W. Miller for defendants.
That deeds for the separation of married persons may by the laws of England be valid and effectual, to many purposes, cannot be doubted. The principle has been affirmed in too many cases in that country to be now safely questioned; yet, that they are at variance with sound policy has been often declared by many of the ablest English judges — by Lord Rosslyn in Legard v. Johnston, 3 Vesey, 358; by Lord Eldon in Beard v. Webb, 2 Bos. and Pul., 93, and in St. John v. St. John, 11 Vesey, 526; and by Lord Ellenborough in Rodney v. (533) Chambers, 2 East, 288. But if all these cases, decided in that country upon that subject, be sustainable, they fall very short of being authorities in this. They are decisions upon solemn deeds. To apply the principle to such a transaction as this would be extending the evils complained of to an alarming degree. It would be loosening another screw in the machinery of married life, marring its operations, weakening its obligations and producing discord and confusion, when peace and concord ought to reign. Without, therefore, intending to express any opinion upon the doctrine of the English courts, or whether it is or is not to be introduced into this State, it is sufficient to say the question does not arise here. A married woman cannot make a valid contract with her husband, except through the intervention of a third person, to whom the duty of enforcing it, in her behalf, belongs. It must be by deed, to which she must be a party — as being deeply interested in the matter. Jones v. Waite, 35 E. C. L., 130, 142. If it were not so, she would be entirely at the mercy of her husband, and might at any moment and without notice be driven from her home and stripped of all her rights and privileges as a wife and mother. There is no deed of separation here, and if the contract had been reduced to writing it is but a parol contract between the plaintiff and defendant, to which the wife of the former was not a party — a contract, in substance, giving to the defendant liberty to harbor the wife for no definite period of time, conferring on the defendant no interest whatever, and revocable by either at any moment. It also secured to the plaintiff the right to cohabit, at the defendant's house, with his wife, at any time he pleased; and it is shown by the case that the plaintiff did visit her at the defendant's house after the contract, as well as before, and cohabit with her. It was neither in form nor substance a contract for a separation, but simply a license to harbor the wife and child, securing the defendant against any legal responsibility for so doing, until withdrawn. The defendant, therefore, was a wrongdoer, not (534) only in the original act of harboring, but also for the continuance of it after the withdrawal of the license by the defendant. But it is urged by the defendant that if the contract was but a license, a demand of his wife by the plaintiff was no revocation. The license, being by parol, could be put an end to by parol, upon the principle of law "eo legamine quo ligatur." Nor is there any special form by which it shall be effected; anything said or done by the party giving the license, which notifies the person enjoying it that it is revoked, is sufficient. The authorities cited by the defendant's counsel on this point do not sustain him. The reference to 1 Ch. Gen. Prac., p. 134, is incorrect as to the page; there is nothing there on that subject. The cases from the English common-law reports are rather authorities against him. That of Carpenter v. Blandford, from the 15th vol., was in assumpsit, to recover a deposit of money for failing to execute a contract for the purchase of a public house and furniture, the whole to be valued by appraisers on a particular day. At the time appointed the plaintiff's appraiser informed the defendant that he could not meet on that day, but could the next. No objection was made. On the next day the plaintiff appeared on the premises with his appraiser, when the defendant declined going on with the business, and informed the plaintiff he ought to have come the day before — he was too late. The only point decided — that the defendant, in not notifying the plaintiff, when informed that his appraiser could not attend on the day appointed, that he would insist upon a performance of the contract agreeable to its terms, that he had waived his right to do so as a forfeiture — is "strictissimi juris." Lewis v. Pondsford, from 34 E. C. L., 585, was an action of "quare clausum fregit." The defendant had executed with his wife a deed of separation, but it was not executed by the trustee. The trespass consisted in entering the (535) house of the plaintiff, against her will, in search of his wife. The Court decided that by the deed a license was given to the wife to live where she pleased. After this license the Court say "that he could not go to any person's house to retake her; he should at least have given notice to persons that he revoked the license." This is an authority tending to show that, although the defendant had executed the deed, yet it operated only as a license to the wife, and could be revoked by parol. The case of Warrender v. Warrender, 2 Clark and Finnelly, 561, is to the same effect. There Lord Brougham declares that, notwithstanding a deed of separation had been executed, the husband had a right to reclaim his wife. His language is, "No pledge can bind the party not to reclaim his or her conjugal rights; for such pledge is against the inherent condition of the married state, and against public policy." The plaintiff in this case, his license being by parol, had a right to reclaim his wife. His demand was a revocation of his license to the defendant to harbor her, and he was a wrongdoer in refusing to do so.
Finally, the defendant insists that the plaintiff has misconceived his action, and ought to have sued in trespass. Mr. Chitty in the first volume of his treatise on Pleadings, page 91, says that trespass is the appropriate remedy for seducing away a wife, or seducing a daughter; but he does not say that it is, in either case, the only remedy; and on the same page he states that for the latter offense it has been usual to declare in case.
The same principles govern the action for each injury — the legal inability of the wife or child to assent to the act. Where the injury is both immediate and consequential, either action can be supported (page 147). If there be a doubt as to the form of the action in this case, it is whether the plaintiff (536) could have maintained trespass for a detention, even after demand.
His Honor instructed the jury that for a detention of the wife before 11 June, 1842, the plaintiff was not entitled to any damages, as three years had elapsed from that time before the action was brought, which was on 11 June, 1845; and that for the detention between 11 June, 1842, and the making of the contract, an action would lie. In both these points no error is perceived. He further charged that the contract was valid, and no demand, on the part of the plaintiff, for the surrender of his wife would give him a cause of action after its execution. In the latter part of the proposition there is error, for which a venire de novo ought to issue.
PER CURIAM. Judgment reversed, and a venire de novo.
Cited: Pool v. Everton, 50 N.C. 242; Haskins v. Royster, 70 N.C. 607.