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bequeathed to her, pursuant to the provisions of the statute, "such woman shall, in respect to all such property, have the same rights and powers, and be entitled to the same remedies in her own name, at law and in equity, and be liable to be sued at law and in equity upon any contract by her made, or any wrong by her done, in respect to such property, and also upon any contract by her made or wrong by her done before her marriage, in the same manner and with the same effect as if she was unmarried; and all such property may be attached in any such suit, and may be taken on execution, as if she held the same being unmarried.”

The statute further provides, that if any married woman, holding property to her separate use by virtue of this act, shall die intestate, all her right and interest in any personal property thus held shall vest in the husband, unless other provision is made in relation thereto by the terms of the contracts or conveyances under which she holds; and that he shall be entitled to his estate by the curtesy in all lands and tenements held by his wife, as if the act had not been passed. (Laws of 1845, ch. 208.) Under this statute it has been held that a conveyance by a married woman, in which her husband does not join, of property held by her to her separate use by virtue of the statute, passes a valid title, subject only to the estate by the curtesy secured to the husband by the statute. (Beal v. Warren, 2 Gray's R. 447.)

A wife, by joining with her husband in a written contract with a mechanic for furnishing labor or materials for erecting a building on her land, does not thereby create a lien on her estate in the land for the amount due to the mechanic for such labor or materials, under the provisions of the statute which give a lien to mechanics and others for the cost of repairs and improvements on real estate; but if the husband and wife have a child born alive in such a case, the mechanic's lien will extend to the husband's estate in the land as tenant by the curtesy initiate. (Kirby v. Tead, 13 Metcalf's R. 149.)

513. By an antenuptial contract between a man and his intended wife, such intended wife was to hold her property to her sole and separate use, and was to advance to the intended husband certain promissory notes owned by her; with the proceeds of which the husband was to redeem his mortgaged farm, and convey one half thereof to his intended wife, and have the use of such half so long as he should be a faithful husband to his intended wife; the

intended husband, however, even then had no legal right to redeem his farm, as the right to redeem it was wholly gone from him; whereupon the parties were married and the husband soon thereafter took the notes from his wife without her consent, and put them into the hands of his attorneys, to be collected for him; the wife petitioned the court to appoint a trustee to hold her separate property in trust for her, and the court appointed a trustee accordingly, and the wife immediately conveyed to such trustee all her separate property in trust according to the provisions of the statute; and the trustee then brought a bill in equity against the husband and his attorneys, praying that they might be required, by decree, to deliver said notes to him, and might be restrained from prosecuting actions against the makers of the notes, and from receiving any money due thereon: the court held that the trustee was entitled to a decree against the husband declaring the title of such trustee to the notes and the proceeds thereof, and also to a decree against the husband's attorneys, requiring them to account for and deliver over to the trustee the notes or the proceeds thereof, on payment of their legal costs and expenses for services and disbursements. (Tinker v. Beach, 11 Metc. R. 349.)

§ 514. By a recent statute of the general court, it is provided that any married woman doing or proposing to do business on her separate account shall file a certificate in the clerk's office of the city or town where she does or proposes to do business, setting forth the name of her husband, the nature of the business proposed to be done, and in case no such certificate shall be filed, such married woman is not allowed to claim any property employed in said business as against any creditors of her husband, but the same may be attached on mesne process by any such creditor or taken upon execution against the husband of such woman. (Laws of 1862, ch. 198.)

The language of this statute is broad and comprehensive, and includes property belonging to a married woman of every kind which is employed by her in carrying on business on her sole account. The object of the statute has been declared to be to afford the means of ascertaining in which of the two persons, the husband or wife, apparently in the possession and. use of property in carrying on any kind of trade or occupation, the title is vested, so that all having occasion to transact business with either may regulate their dealings accordingly. It has, therefore, been held

that the statute applies to furniture used in a boarding-house kept by a married woman.

R. 546.)

(Chapman v. Briggs, 11 Allen's

§ 515. Under the statute of 1845, chapter 208, a married woman to whom real estate had been conveyed, without words expressing that it was to be held by her to her sole and separate use, could not make a valid conveyance thereof without her husband's joining as grantor; and a deed not so executed cannot be reformed in equity. (Jewett v. Davis, 10 Allen's R. 68. Gerrish v. Mason, 4 Gray's R. 432. But vide Perkins v. Richardson, 11 Allen's R. 538.) But in reference to the separate property of the wife which is held exclusively to her own use, and which she may, by virtue of a later statute, convey by her own deed, with the written assent of her husband, a different rule would apply, and she may be required specifically to perform her contract entered into with respect to such separate property. (Vide Baker v. Hathaway, 5 Allen's R. 103. But vide Townsley v. Chapin, 12 ib. 476.)

If a woman mortgages her land to secure a debt to a third person, her subsequent marriage to the mortgagor will not extinguish the mortgage; but after his death his legal representatives may enforce it. Nor will the appointment of the mortgagor as administrator of the estate of the third person have this effect, if no funds come into his hands which can be applied to the payment of the mortgage debt. In such case, the fact that during the inarriage her husband undertook to foreclose the mortgage, and that he executed a will treating the mortgaged premises as his own, cannot legally prejudice her rights after his death. A married woman cannot during coverture be barred of her estate, held without any limitation to her sole and separate use, by an estoppel in pais. (Bemis v. Call, 10 Allen's R. 512.)

§ 516. There are three statutes bearing upon the question of the power of a feme-covert to bind herself by her contract, which essentially modify the marital rights of parties as they exist at common law, and greatly increase the rights and obligations of married women. By the statute of 1845 it is provided that a married woman may, upon certain prescribed terms and conditions, in pursuance of a written contract entered into between the parties before the solemnization of the marriage, hold the whole or any designated part of the real or personal estate of which she may be seised or possessed at the time of the marriage, to her sole and sepa

rate use, free from the interference and control of her husband, and also may in like manner hold such as shall be conveyed or bequeathed to her afterward, to be held in like manner and for the same purpose. (Laws of 1845, ch. 208, §§ 1, 2, 3.) The statute of 1855 declares that all the real and personal property of any woman who shall thenceforward be married in the commonwealth, which she owns at the time of her marriage, or to which she afterward acquires a title by descent, devise or bequest, or by the gift of any person except her husband, shall be and remain her sole and separate property notwithstanding her marriage. (Laws of 1855, ch. 304, §1.) The statute of 1857 goes still further, and declares not only that "the property, both real and personal, which any woman who may now be married in this commonwealth, may now own as her sole and separate property," but also that "any real or personal property which shall hereafter come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property notwithstanding her marriage, and shall not be subject to the disposal of her husband, or liable for his debts." (Laws of 1857, ch. 249, § 1.) These statutes are all in derogation of the common law, and are not to be extended by construction. Hence, it has been held that no claim arises against a married woman for money paid by her request in reference to land of which, after her marriage, and before the passage of the act of 1855, referred to, she received a deed from her father in her own name, but with no provision therein that she should hold the land to her sole and separate use, or free from the interference or control of her husband. (Smith v. Bird, 3 Allen's R. 34.) It has, however, been held that a married woman who holds a bond with condition to convey land to her, to her sole and separate use, free from the interference and control of her husband, upon yment of a certain sum, is liable in an action at law, under the statutes of the commonwealth, upon a promissory note given by her for money borrowed to be applied and actually applied in payment of the amount necessary to secure to her the conveyance of the land, and also upon a promissory note given by her for money borrowed for the purpose of paying debts contracted by her for matters necessary for the carrying on of a farm, after she had received a deed therefor. (Ames v. Foster, 3 Allen's R. 541.)

Under the statute of 1857, a note made payable to a married woman is exempt from attachment by subsequent creditors of her

husband. (Chapman v. Williams, 13 Gray's R. 416. But vide Woodcock v. Reed, 5 Allen's R. 207.)

§ 517. A married woman who carries on the business of keeping boarders on her sole and separate account, and has purchased goods to be used in her business upon her sole credit, is liable therefor under the statute of 1855, although her husband lived with her at the time when the goods were purchased; and her own acts and admissions in reference to her business are competent evidence against her; but she is not liable on a note given by her in payment for goods originally sold and charged to her husband. (Parker v. Simonds, 1 Allen's R. 258.)

So a married woman is liable upon a note signed by her jointly with her husband in payment for lumber and materials sold and delivered upon land owned and held by her to her sole and separate use, and designed for and actually used in the repair of . buildings standing thereon, she knowing all the facts; and also on notes given in renewal thereof. (Parker v. Kane, 1 Allen's R. 346.)

So, also, under the statutes in force, a mortgage of the land of a married woman held by her to her sole and separate use, executed without duress by her and her husband jointly, to secure a debt of her husband and a third person, is valid; and the fact that she signed a note for the same debt as surety for them is immaterial. And if a married woman has jointly with her husband executed a deed of land held by her to her sole and separate use, the effect of the words of grant in the early part of the deed is not controlled by a statement in the last clause that she signs in token of her release of dower. (Bartlett v. Bartlett, 1 Allen's R. 440.)

An indorsement of a draft by a husband to his wife, and her subsequent indorsement of it with his assent to a third person, are sufficient to vest in the latter a valid title. (Slawson v. Loring, 5 Allen's R. 340.)

A married woman who carries on the business of farming upon land for which she holds a bond for a deed, to her sole and separate use, is liable upon a promissory note given by her for money borrowed to enable her to pay for the land, and actually applied by her to that purpose. (Chapman v. Foster, 6 Allen's R. 136.) And a promissory note given by a married woman for land conveyed to her, to her sole and separate use, is valid under the statute. (Stewart v. Jenkins, 6 Allen's R. 300.)

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