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decided, and in accordance with the distinction just pointed out, it is held in Kansas that the second marriage is not void. See also Conn. vs. Conn., 2 Kan., App. 419. In Cox vs. Combs, 8 B. Mon. (Ky.), 231, it is held, under a statute declaring that the injured party to a decree of divorce shall not be authorized to contract matrimony within two years, but not imposing a penalty for a second marriage, that a marriage within two years is void. The court, in the reported case, however, does not recognize such a distinction, and refuses to base its holding on the theory that the second marriage was only voidable under the statute. The decision rests entirely upon the bona fide intention of the parties and their cohabitation after the statutory impediment was removed by lapse of time. There is no case, so far as appears, in which the identical question raised in the reported case has been decided, but the question must depend upon the following principles. It is a rule that in a number of states that an informal marriage is still valid as at common law, and that even statutes requiring a marriage license are merely directory."
HUSBAND AND WIFE.
SECTION 24. RIGHTS OF HUSBAND IN PROPERTY OF WIFE AT COMMON LAW.
At common law, by marriage, all the personal property of the wife passed to her husband,' who was also entitled to the rents and profits of her real estate during coverture.2 Choses in action became the property of the husband upon being reduced to possession. The subject of reduction to possession of the wife's choses in action is discussed in Tritts vs. Colwell's Admr., as follows:
"It is unnecessary to pursue this subject further. The masterly discussion of Chief Justice Gibson in Siter's Case, 4 Rawle, 468, has left 'almost nothing unsaid.' If, then, the transaction between George M. Phillips and William Graham was an assignment of the bond of Mrs. Phillips for a valuable consideration, it must prevail against the wife, even though she survived her husband.
"It is, however contended that it was not an assignment, but a pledge. Undoubtedly, a pledge is insufficient to bar the wife's right, for it is no reduction into possession of her title. The instrument now before us is an assignment, not a pledge. It contains all the operative words fit and necessary to pass the title. It needs but one more witness, to make it a legal assignment under the Act of 28th of May, 1715, such as to enable an assignee to sue in his own name. That
1 Carleton vs. Lovejoy, 54 Me., 445.
' Shaw vs. Partridge, 17 Vt., 626;
Breeding vs. Davis, 76 Va., 639.
31 Pa. St., 228.
it passed the bond to Graham as a security collateral to the obligation expressed in the instrument makes the transaction no less an assignment. The title was in the assignee, defeasible on the performance of a condition subsequent, to-wit, the payment of the debt. That the existence of such a condition subsequent does not prevent the title from vesting in the assignee, is the result of all the authorities so far as I know, without exception. The case of Hartman vs. Dawdel, 1 Rawle, 279, relied upon by the plaintiff in error, in truth, asserts no other doctrine. Chief Justice Gibson, the author of the opinion, in speaking of it in Siter's case, remarks, that 'However the opinion of the court may have been expressed, it certainly was intended to rule the case expressly on the distinction between a voluntary assignment and one for value.' There the consideration for the equitable assignment was not, as here, an advance of money at the time, but a preexisting debt, which had been held in Petrie vs. Clark, 11 S. & R., 377, not to be a valuable consideration.
"Bates vs. Dandy, 2 Atk., 207, a case fully recognized in this state as of fundamental authority, was itself but an agreement to assign the wife's chose in action, as a collateral security for a present loan of money, yet it was decreed to prevail against the wife. A mortgage is only a collateral security, yet it passes the title. This is universally conceded; 2 Kent, Com. 581, Addison on Contracts, 318; Story's Eq., 1030. If, then, the assignment of George M. Phillips, conveyed to Graham the title to the chose, as we have seen that it did, and was for a valuable consideration, the court below correctly instructed the jury that it defeated Mrs. Phillip's right of survivorship. As was said in Woelper's appeal, 2 Barr, 71, it is the husband's
assumption of title, and not the form of the act which it is indicated, which is the criterion. An actual use of the wife's chose in action for his own purposes, works a transfer of her ownership."
SECTION 25. LIABILITY OF HUSBAND FOR THE
TORTS OF HIS WIFE AT COMMON LAW.
At common law, the husband was jointly liable with his wife for all torts committed by her alone,* and alone liable for all torts committed by his wife in his presence or with his assistance. The above principle applied only in the case of pure torts, and not in the case of torts arising out of contracts.
SECTION 26. LIABILITY OF HUSBAND FOR DEBTS OF HIS WIFE AT COMMON LAW.
At common law, the husband was, during coverture, liable for all the ante-nuptial debts of his wife, even although he did not know of their existence at the time of his marriage. The husband could, however, set up any defense to such debts that could have been personally set up by his wife.
The death of the wife released the husband from all liability for any debt of the wife which had not been reduced to judgment against husband during the coverture. If a judgment is recovered against the wife before marriage a sci. fa. lies against her and her
Lee vs. Hopkins, 20 Ont., 666;
• Woodward vs. Barnes, 46 Vt., 332, 14 Am. Rep., 626.
'Hetrick vs. Hetrick, 13 Ind., 44; Alexander vs. Morgan, 31 Ohio St., 546.
* Caldwell vs. Drake, 4 J. J., Marsh, 246.
• William vs. Kent, 15 Wend. (N. Y.), 360; Hawthorne vs. Beckwith, 89 Va., 786.
husband, after marriage, and if a judgment is obtained against them on sci. fa., and she afterwards dies, he will be bound by the judgment.'
A wife was not liable for the debts of her husband. At common law the surviving husband or wife had the right of administration of the estate of the deceased wife or husband.
At common law, coverture was the estate which a husband had in the real property of his wife during their joint lives. Coverture is more fully discussed under the subject of Estates in Real Property."
SECTION 28. CURTESY.
The estate by the curtesy, is a life estate in the real estate of a deceased wife, held by her husband after her death.
A husband is entitled to such estate when there has been issue of such marriage born alive who were capable of inheriting such real estate.
The husband is entitled to curtesy in all lands of which his wife had seisin during the coverture. He is entitled to curtesy where the wife held an equitable estate the same as where she held a legal one. The husband's right to curtesy can be defeated by divorce or by his laches. A divorce a vinculo matrimonii destroyed a husband's right of curtesy.
An estate of curtesy initiate was a vested estate at common law, and could be seized under execution against the husband. Curtesy can be relinquished by an ante-nuptial agreement.
A joint mortgage by husband and wife of wife's " Vol. 6, Sub. 17.
• O'Brian vs. Rau., 3 Md., 186.