Camden v. Mullen

By the Court, Rhodes, J. The only question requiring consideration 'is whether a married woman, who had availed herself of the provision of the Act of 1852, to authorize married women to transact business in their own names as sole traders, and had declared her intention to conduct and carry on the business of keeping a public hotel or eating house, and of carrying on a general farming and ranching business, in her own name and on her own account, could, while that statute remained in force, execute in her own name a valid promissory note for a part of the purchase money for a tract of land sold and conveyed to her, and could execute in her individual name, without joining her husband, a valid mortgage of the premises, to secure the payment of the promissory note.

The statutes of this State defining the rights of husband and wife, have made .provision for the acquisition, management, [566]control and disposition of the separate property of either the husband or the wife, and the common property of both; and by the Act of 1852 provision was made for a different character of property, which is the separate property of the wife, but is not to be classed with the separate property described in the Act defining the rights of husband and wife.' It may be acquired by her by purchase for a pecuniary consideration, or as the result of her own earnings, but it does not become common property, and is not subject to the control of the husband. The third section of the Act provides that after the wife has duly made and recorded her declaration, she shall be entitled to carry on in her own name the business specified in her declaration, and that “ the property, revenue, moneys and debts and credits so invested shall belong exclusively ” to her; and that she “ shall be allowed all the privileges, and be liable to all the legal processes now or hereafter provided by law against debtors and creditors.” The language of the Act, though not as lucid in every respect as might be desired, indicates the intent of the Legislature, that in respect to her business, as specified in her declaration, and the property invested therein, she shall be deemed a feme sole, possessing all the rights, powers and privileges, and subject to all the liabilities in respect to such business and property that she would possess and be subject to, were she unmarried. Such is the construction given to this statute in McCune v. McGarvey, 6 Cal. 497; Guttman v. Scannell, 7 Cal. 455 ; and Melcher v. Kuhland, 22 Cal. 523; and the doctrine is recognized in Alverson v. Jones, 10 Cal. 12; Maclay v. Love, 25 Cal. 367, and other cases.