Drais v. Hogan
Synopsis
Payment of Wife’s Debt by Husband.—H the wife has separate property, and a judgment is rendered against her, a payment of the judgment by the husband, in order to protect her separate estate from forced sale, is, as to third persons, a payment by the wife, and in an action against a third person to recover the money paid, may be counted upon by the wife alone, or by the husband and wife, as a payment made by her.
Idem.—The above principle is founded on the fact that the husband is the agent appointed by law for the management of the separate estate of the wife.
Special Demubbeb.—In an action brought by the husband and wife to recover money paid on a judgment recovered against the wife, if the complaint avers that the wife was compelled to pay the judgment, and then alleges that the husband paid it for and on account of the wife, without an allegation that it was done at her request, the defect in the complaint, if it is one, can be taken advantage of only by special demurrer.
Payment by Husband of Incumbbance on Wife’s Sepabate Pbopebty.— If the husband, at the special request of the wife, pay off an incumbrance upon her separate estate; in an action brought by the spouses against a third person to recover the amount, on the ground that the incumbrance was created by the negligence of such third person, he cannot make the objection that the payment by the husband did not establish the relation of debtor and creditor between the spouses.
Capacity of Wife to Gontbact.—A married woman cannot hind herself by a contract to pay an attorney for procuring a divorce and a division of the common property.
Liability of Atiobney fob Mismanagement.—If an attorney is employed to conduct a case in the District Court, and a judgment is rendered against his client, and he is entitled to a new trial, and obtains one, but conducts the proceedings in obtaining the new trial so carelessly and negligently that the order granting the same is reversed in the Supreme Court, he is liable to the client for the loss sustained thereby, and his liability is not destroyed by the fact that his client employed other counsel in the Supreme Court.
Idem.—If a judgment is obtained against a party upon a complaint which is radically defective, and he desires to appeal, and procures bondsmen, but his attorney neglects to do so until the time for appeal expires, the attorney is guilty of gross negligence, and is liable for the loss sustained by the client.
By the Court: Upon considering the record and printed arguments upon which the cause was submitted, we are of opinion that neither the judgment nor the order denying a new trial should be disturbed here.
1. The payment by the husband of the female plaintiff of the judgment rendered against her, she being the owner of a separate estate, was in effect a payment made by herself— the husband being the agent appointed by law for the management of the separate estate of the wife, a payment made by him, in order to protect the separate estate from forced [126]sale, is, as to third persons, within the scope of his agency, and may be counted upon by the wife, or by the husband and wife, in an action against a third person, as a payment made by her. Besides, the only objection taken in argument in this respect points to the supposed insufficiency of the complaint, in that, after averring that the female plaintiff “was compelled to pay said judgment” (of Budd & Dudley against Lucinda Drais), it alleges that her husband, Madison Drais, paid it “for and on account of said Lucinda,” etc., without also alleging “at her request.” If there were anything in this objection, it could, at all events, be presented only upon special demurrer, which was not done in this case. It is claimed, however, that even a special request made by the wife to the husband, that he pay off an incumbrance upon her separate estate, and the payment made by him in pursuance of such request, cannot be relied upon in an action against a third party as having the effect of a payment made by the wife herself, and this because it is said that such a transaction between husband and wife would not establish the relation of debtor and creditor between them.
But no force is perceived in this reasoning. What, if any, new legal relation would arise between the spouses because of such a transaction is of no concern to a third party, neither to the party receiving the payment, as Budd and Dudley in this instance, nor to Hogan, who is sued because of the necessity of the payment and the fact of its having been made. Had the husband placed the money in the hands of the wife, to be used by.her in paying off the judgment, and had the latter herself appropriated it to that purpose, the transaction as between the spouses would have been in substance the same as that appearing here, and in that case it would have been no concern of the defendant, and we think it no concern of his now as to whether the husband thereby became a creditor of the wife or not.
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