Terry v. Hammonds

By the Court, Crockett, J.: Whether a final judgment for the defendant, rendered on a demurrer to the complaint, can be pleaded in bar of a subsequent action between the same parties, depends upon the question: First, whether the demurrer went to the merits of the action; and second, whether the cause of action is the same. If either of these conditions be wanting, the judgment on. demurrer does not bar another action. In the case at bar the demurrer in the former action was on the ground that the complaint did not state facts sufficient to constitute a cause of action, and therefore went to the merits. The complaint in the present is substantially the same as in the former action, with the exception that in this case it is averred that the services rendered by the plaintiffs were rendered upon the faith and credit of the separate estate of the female defendant, and in and about its preservation —an allegation not found in the first complaint. This is a material averment, and its absence from the first complaint is probably the ground on which the demurrer was sustained.

Whilst a married woman is incapable of binding herself in a contract to the extent that a personal judgment may be rendered against her for a breach of it, nevertheless it is well settled in England, and in most of the American States, that she may contract for services to be rendered in the protection and preservation of her separate estate, and for services thus rendered, on the faith of the estate, a Court of equity will decree and enforce a lien upon it. (2 Story Eq. Sec. 1401; Yale v. Dederer, 22 N. Y. 450; Meyer v. Simmes, 19 Ind. 117; Van Buren v. Swan, 4 Allen, 330; Murray v. [36]Barley, 3 Milne & Keen, 209; Miller v. Newton, 23 Cal. 554.) In Yale v. Dederer, supra, 451, Mr. Justice Selwyn, in defining the limits of the lien upon the separate estate of the wife, says: “Starting with this point, it is plain that no debt can be a charge which is not connected by agreement, either express or implied, with the estate. If contracted for the direct benefit of the estate itself, it would of course become a lien upon a well founded presumption that the parties so intended, and, in analogy, to the doctrine of equitable mortgages for purchase money. But no other hind of debt can, as it seems to me, be thus charged without some affirmative act of the wife evincing that intention.”

In the former action brought by the plaintiffs there was no averment in the complaint to the effect that the services were rendered in the preservation of the separate estate of the wife, and on the faith of that estate; nor even that the wife had a separate estaté. But these material averments are supplied in the present case, and the two causes of action are therefore different. It appears, however, on the face of each complaint that a portion of the plaintiff’s demand is for services rendered to the female defendant in procuring for her a divorce from her former husband, and a division of the common property; and it is said that to this extent, at least, the services were not in and about or for the protection of her separate estate. But,' in the present complaint, it is averred that the wife had a separate estate, exclusive of her interest in the common property, and that by the decree in the action for divorce she was awarded the sum of ten thousand eight hundred and sixty-six dollars as her share of the common property, “ and the possession and custody of her separate estate, fully described in said decree, which said decree has been fully executed.” In the former complaint it did not appear that she had a separate estate, or that it was ascertained and awarded to her by the decree in the action for divorce. The services in the divorce case were, therefore, in part at least, for the benefit of her separate estate. But if they had related solely to the procuring of the divorce, and the securing to her a just division of the common property, and if the ser