Nebraska Revised Statute 42-202

Chapter 42 Section 202

42-202.

Married woman; capacity to contract; same as married man.

A married woman may bargain, sell, and convey her real and personal property. Such a woman may enter into any contract in the same manner, to the same extent, and with like effect as a married man. The obligations of her contracts shall be the same as a married man.

Source

  • Laws 1871, § 2, p. 68;
  • R.S.1913, § 1561;
  • C.S.1922, § 1510;
  • C.S.1929, § 42-202;
  • R.S.1943, § 42-202;
  • Laws 1957, c. 172, § 1, p. 594.

Annotations

  • 1. Power over separate property

  • 2. Liability as surety

  • 3. Contracts prior to 1957 amendment

  • 4. Mortgages

  • 5. Conveyances

  • 6. Pleading coverture prior to 1957 amendment

  • 7. Mechanic's lien

  • 8. Miscellaneous

  • 1. Power over separate property

  • Rights of wife with respect to property held in joint tenancy are not different from those of her husband. Bonner v. City of Imperial, 149 Neb. 721, 32 N.W.2d 267 (1948).

  • Legislature has placed a married man and woman on a parity with reference to real and personal property. Focht v. Wakefield, 145 Neb. 568, 17 N.W.2d 627 (1945).

  • Husband cannot sell wife's property, but she may sell it to same extent as married man. Marsh v. Marsh, 92 Neb. 189, 137 N.W. 1122 (1912).

  • A married woman has same power over separate property as husband has over his. Kloke v. Martin, 55 Neb. 554, 76 N.W. 168 (1898); Melick v. Varney, 41 Neb. 105, 59 N.W. 521 (1894); Farwell v. Cramer, 38 Neb. 61, 56 N.W. 716 (1893).

  • 2. Liability as surety

  • When a bank has given extension of time upon indebtedness of husband and wife by taking a new note therefor, such extension is sufficient consideration to support wife's contract to bind separate estate. Harbine Bank of Fairbury v. McCune, 131 Neb. 419, 268 N.W. 358 (1936).

  • Under former law, note by married woman as husband's surety, was binding on her only on showing her intention to bind separate estate. First Nat. Bank of Alexandria, S.D. v. Ernst, 117 Neb. 34, 219 N.W. 798 (1928).

  • Under former law, wife had power to contract with reference to separate estate only, and it was not presumed that she intended to charge same. Northwall & Co. v. Osgood, 80 Neb. 764, 115 N.W. 308 (1908); Farmers' Bank v. Boyd, 67 Neb. 497, 93 N.W. 676 (1903); Citizens State Bank of Wood River v. Smout, 62 Neb. 223, 86 N.W. 1068 (1901); Westervelt v. Baker, 56 Neb. 63, 76 N.W. 440 (1898); State Nat. Bank v. Smith, 55 Neb. 54, 75 N.W. 51 (1898); First Nat. Bank of Sutton v. Grosshans, 54 Neb. 773, 75 N.W. 51 (1898); Stenger Benevolent Assn. v. Stenger, 54 Neb. 427, 74 N.W. 846 (1898); Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N.W. 82 (1898).

  • Separate estate of wife was bound by guaranty on note regardless of disposition of proceeds. Kitchen v. Chapin, 64 Neb. 144, 89 N.W. 632 (1902).

  • Under former law, wife might be surety, if she intended to bind her separate estate. McKell v. Merchants' Nat. Bank, 62 Neb. 608, 87 N.W. 317 (1901); First Nat. Bank of Chicago v. Stoll, 57 Neb. 758, 78 N.W. 254 (1899).

  • Wife may be surety on husband's note. Spatz v. Martin, 46 Neb. 917, 65 N.W. 1063 (1896).

  • Evidence was sufficient to show joint note charged separate estate. Bowen v. Foss, 28 Neb. 373, 44 N.W. 450 (1889).

  • Under former law, wife was not liable as surety unless she intended to bind separate estate. The State Savings Bank of St. Joseph, Mo. v. Scott, 10 Neb. 83, 4 N.W. 314 (1880).

  • Creation of debt is prima facie evidence of intent to charge separate estate. Webb v. Hoselton, 4 Neb. 308 (1876).

  • 3. Contracts prior to 1957 amendment

  • Where the contract of a married woman does not expressly bind her separate estate for payment of a debt, the question of her intention must be determined as a fact from all evidence and surrounding circumstances. Federal Land Bank of Omaha v. Plumer, 139 Neb. 301, 297 N.W. 541 (1941).

  • A married woman may enter into a business partnership with another as part of her own trade or business, and when she does, she becomes bound as partner and is liable for partnership debts whether contracted by herself or another member of the firm. Plattsmouth State Bank v. John Bauer & Co., 133 Neb. 35, 274 N.W. 204 (1937).

  • General money judgment on contract executed by married woman during coverture, binding separate estate, is enforceable only against property or proceeds she possessed at time of making of contract. Giltner State Bank v. Talich, 115 Neb. 236, 212 N.W. 536 (1927).

  • A married woman may contract to pay tuition essential to an educational course for herself in osteopathy, though she has no separate estate. Still College v. Morris, 93 Neb. 328, 140 N.W. 272 (1913).

  • Contract binding separate estate includes only property then owned, unless otherwise specified. Marsh v. Marsh, 92 Neb. 189, 137 N.W. 1122 (1912).

  • The contract of a married woman can only be enforced against the separate estate which she possessed at the date of the contract. Parratt v. Hartsuff, 75 Neb. 706, 106 N.W. 966 (1906); McKell v. Merchants' Nat. Bank, 62 Neb. 608, 87 N.W. 317 (1901); Kocher v. Cornell, 59 Neb. 315, 80 N.W. 911 (1899).

  • A married woman may contract to same extent as formerly in equity. Kocher v. Cornell, 59 Neb. 315, 80 N.W. 911 (1899).

  • In an action against a married woman on a note executed by her as surety, coverture is a complete defense unless it is shown that she intended to bind separate estate. Smith v. Bond, 56 Neb. 529, 76 N.W. 1062 (1898); Kershaw v. Barrett, 3 Neb. Unof. 36, 90 N.W. 764 (1902).

  • Married woman has power to contract with reference to separate estate only. Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N.W. 82 (1898).

  • A married woman is not liable as maker of note unless she intended to bind separate estate. Barnum v. Young, 10 Neb. 309, 4 N.W. 1054 (1880).

  • A married woman may contract with husband and sue him on contract. May v. May, 9 Neb. 16, 2 N.W. 221 (1879).

  • 4. Mortgages

  • A married woman may mortgage her separate estate to indemnify the sureties upon an official bond of her husband. Bode v. Jussen, 93 Neb. 482, 140 N.W. 768 (1913).

  • Contemporaneous loan to husband is consideration. Holmes v. Hull, 50 Neb. 656, 70 N.W. 241 (1897); Watts v. Gantt, 42 Neb. 869, 61 N.W. 104 (1894); Briggs v. First Nat. Bank of Beatrice, 41 Neb. 17, 59 N.W. 351 (1894); Smith v. Spaulding, 40 Neb. 339, 58 N.W. 952 (1894).

  • A married woman may mortgage separate estate to secure husband's debt. Nelson v. Bevins, 19 Neb. 715, 28 N.W. 331 (1886); Stevenson v. Craig, 12 Neb. 464, 12 N.W. 1 (1882).

  • Mortgage to secure money, embezzled by husband to prevent his punishment, was not executed under duress. Mundy v. Whittemore, 15 Neb. 647, 19 N.W. 694 (1884).

  • Under former law, a consideration must exist for mortgage by married woman of her separate estate to secure husband's debt. Kansas Mfg. Co. v. Gandy, 11 Neb. 448, 9 N.W. 569 (1881).

  • Under former law, where there was no proof of intention to bind separate estate, deficiency judgment on foreclosure should be refused. Morris v. Linton, 4 Neb. Unof. 550, 95 N.W. 11 (1903); Farmers Bank v. Normand, 3 Neb. Unof. 643, 92 N.W. 723 (1902).

  • 5. Conveyances

  • Husband may convey directly to wife. Currier v. Teske, 84 Neb. 60, 120 N.W. 1015 (1909); Lavigne v. Tobin, 52 Neb. 686, 72 N.W. 1040 (1897); Furrow v. Athey, 21 Neb. 671, 33 N.W. 208 (1887).

  • A conveyance by a married woman of her separate property, not her homestead, is valid between the parties, although not acknowledged. Linton v. Cooper, 53 Neb. 400, 73 N.W. 731 (1898).

  • Contract between husband and wife is valid if it is made voluntarily upon consideration. Greene v. Greene, 42 Neb. 634, 60 N.W. 937 (1894).

  • A married woman may give power of attorney to husband, authorizing him to convey her separate estate. Benschoter v. Atkins, 25 Neb. 645, 41 N.W. 639 (1889); Benschoter v. Lalk, 24 Neb. 251, 38 N.W. 746 (1888).

  • A married woman is liable on covenants of warranty in deed conveying her separate estate, though husband joins. Real v. Hollister, 17 Neb. 661, 24 N.W. 333 (1885).

  • Deed unacknowledged is void. Roode v. State, 5 Neb. 174 (1876).

  • 6. Pleading coverture prior to 1957 amendment

  • Plea of coverture must negative conditions under which party might contract. First Nat. Bank of Chicago v. Stoll, 57 Neb. 758, 78 N.W. 254 (1899).

  • Answer must allege that contract did not concern her separate estate. Gillespie v. Smith, 20 Neb. 455, 30 N.W. 526 (1886).

  • 7. Mechanic's lien

  • Under former law, where contract was made with husband and not ratified by wife, mechanic's lien on separate estate of wife was invalid. Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 82 N.W. 112 (1900).

  • There can be a valid mechanic's lien for improvements on separate estate. Howell v. Hathaway, 28 Neb. 807, 44 N.W. 1136 (1890).

  • 8. Miscellaneous

  • Wife may make independent contract for services of attorney in divorce suit, but husband is only liable upon court approval of application for allowance of fees. Auld v. Auld, 122 Neb. 576, 240 N.W. 756 (1932).

  • Legislation was designed to remove disabilities from married woman, so as to place both sexes in equal position before the law. Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297 (1927).

  • This section has no reference to the right of a married woman to testify. Greene v. Greene, 42 Neb. 634, 60 N.W. 937 (1894).

  • Under former law, whether contract was made in reference to separate estate was for jury. Godfrey v. Megahan, 38 Neb. 748, 57 N.W. 284 (1894).

  • Deed by married woman of sixteen is binding. Ward v. Laverty, 19 Neb. 429, 27 N.W. 393 (1886).

  • Property coming to the wife by gift from the husband is excepted from the wife's separate estate. United States v. Sode, 93 F.Supp. 398 (D. Neb. 1950).