Jett, W. S., Jr.

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University of Kentucky

Kentucky Law JournalVolume 23 | Issue 4 Article 81935Domestic Relations--Liability of a Married Womanas SuretyW. S. Jett Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Family Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationJett, W. S. Jr. (1935) "Domestic Relations--Liability of a Married Woman as Surety," Kentucky Law Journal: Vol. 23 : Iss. 4 , Article 8.Available at: https://uknowledge.uky.edu/klj/vol23/iss4/8STUDENT NOTES 669be. In the case of Ohio Valley Electric Railway Co. v. Payne, theplaintiff, who had been knocked to the tracks of the defendant streetrailway company at a place located several feet from the highway andhence where no one was expected to be, was run over by a car drivenbiy a servant o" the defendant. The court *held that there was noduty of lookout under these circumstances and that the motorman wasnegligent only if he failed to exercise ordinary care after he dis-covered the plaintiff on the tracks.In the case of Cahill v. Cin., Etc., Ry. Co.,' the court, referringto trespassers on the tracks of railroads, said "the only duty a rail-xoad company owes to such persons is to use reasonable diligenceto prevent injuring him when his actual peril is discovered in timeto do so." This statement is but dictum, yet in view of the Ohio Valley-case,8 it represents the probable attitude of the court.Thus we see that in applying the humanitarian doctrine, theplace where the injury occurs is important. Should an injury occurwhere those in charge of a train had a right to expect a clear track,and a trespasser is struck and injured, the company cannot be heldliable unless its servants could have avoided the injury after they had.-actually discovered the peril of the person injured. But where theinjury occurs at a much traveled public or private crossing or otherplace where those in charge of the train might reasonably expectp.ersons to be on the tracks, then the welfare of the public demandsthat the railroad company keep a lookout to protect the lives of thosewho are on the tracks. Nor is there a great hardship imposed on thecompany to require such a lookout.The humanitarian doctrine is more than an exception to- the law,of contributory negligence-it is a rule based on the precepts ofhumanity and natural justice for the preservation of those who cannot-or who will not look out for themselves.WILLIAM1 MELLO:.DOMESTIC RELATIONS-LIABILITY OF A MARRIED WOMAN-AS SURETY.In a recent Kentucky case,' defendant, a married woman, executedher own promissory note to enable a payee to borrow money. .Thepayee pledged defendant's note as collateral.to secure his own indebt--edness evidenced by another note which he himself executed. The.action was brought on the note executed by defendant to the payee.'213 Ky. 590, 281 S. W. 523 (1926).T Note 3, supra.8 Note 6, supra.I Cawood v. Madison Southern National Bank and Trust Co., 251Ky. 637, 65 S. W. (2d) 734 (1933).670 KENTUcKY LAw JouRNALThe court held that the note was not illegal as involving a suretyshiptransaction.PThe court based its decision on the grounds that the facts dis-close an individual undertaking on the part of the married woman,whereby she intended to incur a personal obligation, notwithstandingthe fact that the note was executed for the benefit of another, and.such incurring of a personal obligation to pay by a married womanis not prohibited by the Kentucky Statute.3It is universally recognized that under the common law the at-tempted contracts of a married woman were absolutely void. It is.submitted, by way of analogy, that a married woman's attempts to.act as surety for the obligation of another's promise to pay would.under the common law have been null and void. There have beencases so holding.4 The courts make what might be called an excep-tion to the general common law rule, in the courts of equity. Therea married woman could contract with reference to her equitable sepa-rate estate so as to bind the estate but not so as to bind herself per-sonally.5Under modern statutes the liability of a married woman as suretydepends wholly upon the existing statutory provision peculiar to theparticular jurisdiction in which the problem might arise. For example,under a statute enlarging her general contractual powers, but spe-cifically providing that a married woman cannot bind herself as suretyor guarantor,6 it is obvious that a married woman cannot becomesurety for another's debt.' Where on the contrary in some jurisdictionsthe statutes give a married woman general contractual power withoutexpress limitation of her capacity to become surety,8 it has been held,by necessary implication that a married woman may become a surety.,2Ky. Stats., Sections 2127, 3720b-27.3Note 2, supra.4 Shores-Mueller v. Bell, 21 Ga. 194, 94 S. E. 83 (1917); Yale v.Dederer, 18 N. Y. 265, 72 Am. D. 503 (1858); Hyner v. Dickinson, 32Ark. 776 (1878); Bank of St. Helens v. Mann's Be'r., 226 Ky. 381, 11S. W. (2d) 144 (1928).5 Madden on Domestic Relations, p. 96; Peck on Domestic Rela-tions, 3rd Ed., p. 254.6 Ga. Civil Code, Section 3007; Carroll's Ky. Stats., Sec. 2127; Ind.Code, Section 38-104; Mich. Stat. 13057; South Carolina Stat., Section,8575.'Gross v. Whitley, 128 Ga. 79, 57 S. E. 94 (1907); Cawood v. Mad.So. Nat. Bank & Trust Co., 251 Ky. 637, 65 S. W. (2d) 734 (1933);Pabst Brewing Co. v. Schuster, 55 Ind. 375, 103 N. E. 950 (1914); Fisk-v. Mills, 104 Mich. 433, 62 N. W. 559 (1859); Collins v. Hall, 55 S. C.336, 33 S. E. 466 (1899).8 Kan. Stat., Sec. 23-202; La. Act. No. 132 of 1926; Me. Pub. Laws.of 1866-c52; Ark. Act of 1915, Sec. 1, p. 684; Minn. Laws 1869-c56;Oregon, Hills Ann. Laws, Sees. 2992, 2997, 2998.9Holland v. Bond, 125 Ark. 526, 189 S. W. 165 (1916); Wicks v.Mitchell, 9 Kan. 80 (1872); Mayo v. Hutchinson, 57 Me. 546 (1868);Northwestern Mut. Life Ins. Co. v. Allis, 23 Minn. 337 (1877); Southern.Oregon First Nat. Bank v. Leonard, 36 Or. 390, 59 Pac. 873 (1900).STUDENT NoT-sIn a late Federal case, 0 it was held under code, Section. 1155, thata note and deed of trust signed by a married woman, undertaking tobind herself as surety of her husband was absolutely void, and failedto impose on her any obligation enforceable either at law or in equity.The reasons for the rule outside of any statutory provisions can readilybe seen. It is submitted that were the wife permitted to act as suretyof the husband the elements of persuasive force and coercion in a de-gree not sufficient to constitute duress might be used on the wife bythe husband, in order that he might be able to borrow money. How-ever, the cases are not so clear, although the rule seemingly is thesamen where the wife has attempted to act as surety of a third person,since the aforementioned elements do not enter in.In Kentucky the attempted contracts of suretyship of a marriedwoman are void and cannot be ratified.3 In fact, a married womanwho attempts to become a surety of the obligation of another cannotbe held after her disabilities are removed unless there is a sufficientnew consideration.m 3 However, the wife may appoint her husband agentand she will be bound by the statements he made that she is prin-cipal on a note,'4 but if the payee of the note knows that the wife ismerely a surety, she will not be bound."The problem has been fairly well covered in this state by statute."OThe statute, by necessary implication, provides that although a mar-ried woman cannot be held as surety of the obligation of another assuch, still if she intended by her act to incur a personal obligation topay, she will be held liable, but not as a .surety, notwithstanding thefact that the note was executed for the benefit of another 7 In otherwords, each case depends strictly upon its own facts as to what shallbe the decision of the court. The court in reaching its decision wouldseem, from the principal case,"8 to place a liberal construction on thestatute in order to reach the most expedient result.The purpose of such a statute is to give married women a favoredplace in the law, viz., exemption from liability as the surety of another.It preserves that which might be destroyed by coercion and merepersuasion. Such has been the policy of the legislature from time im-memorial, and such it shall remain, if the lawmaking powers areplaced in the hands of competent persons.W. S. JETT, JR.2"Bradbury v. Howard, 31 Fed. (2d) 222, 58 App. D. C. 383 (1929).nNote 10, supra (dictum).=3Farmers Bank v. Williams, 205 Ky. 261, 265 S. W. 771 (1924);.Prater v. Hays Elkhorn Coal Co., 253 Ky. 713, 70 S. W. (2d) 378 (1934)."3 Note 10, supra."1 Tompkins v. Triplett, 110 Ky. 824, 62 S. W. 1021 (1901)."2Postell v. Crumbaugh, 23 Ky. L. Rep. 2193, 66 S. W. 830 (1902)." Note 2, supra.' Note 1, supra." Note 1, supra.

Domestic Relations--Liability of a Married Woman as Surety

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Domestic Relations--Liability of a Married Woman as Surety

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