Page:North Dakota Reports (vol. 3).pdf/305



Liability of Married Women as Surety.

A married woman is liable on a note signed by her as surety for her husband, although she does not charge her separate estate with the payment thereof.

Appeal from District Court, Cass County; McConnell, J.

Action by the Colonial & United States Mortgage Company against Orlando Stevens and Ellen A. Stevens on a note. From a judgment dismissing the case, plaintiff appeals.

Reversed.

W. J. Kneeshaw, (Byron Abbott, of Counsel) for appellant.

Section 2590, Comp. Laws, is a part of the Code prepared by the New York Commission. It was adopted by Dakota in 1886, by California in 1872, later by Nevada. It is the same as § 158 Cal. Code, and § 169 of Nevada Civil Code. The courts of each of these states passing upon this section have unequivocally held that a married woman is under no disability and can contract as if a feme sole. Wood v. Orford, 52 Cal. 412; Marlow v. Barlew, 53 Cal. 556; Good v. Moulton, 8 Pac. Rep. 63; Burkle v. Levy, 11 Pac. Rep. 643; Cartan v. David, 4 Pac. Rep. 61. A married woman makes contracts sui juris respecting specific property. Yerkes v. Hadley, 40 N. W. Rep. 340, 5 Dak. 324. The Supreme Court of Vermont and Minnesota upon similar statutes have held that a married woman's contracts are not affected by coverture. Reed v. Newcomb, 10 At. Rep. 539; Dobbin v. Cordiner, 42, N. W. Rep. 870. Sandwich Mfg. Co. v. Zellmer, 51 N. W. Rep. 379. Where the law gives a woman power to contract like a feme sole, the courts will hold her to her obligation to perform. Orange Nat. Bank v. Traver, 7 Fed. Rep. 149. Ellen A. Stevens is estopped from pleading in this case coverture and want of consideration. Pom. Eq. Jur. § 814. Dobbin v. Cordiner, 42 N. W. Rep. 870.

Charles A. Pollock, for respondents.