Beckstead v. Gee

• Decision Date: 28 April 1938
• Docket Number: 6509
• Citation: 58 Idaho 758,79 P.2d 293
• Parties: ALEX BECKSTEAD, Appellant, v. J. E. GEE et al., Respondents
• Court: Idaho Supreme Court

79 P.2d 293

58 Idaho 758

ALEX BECKSTEAD, Appellant, v. J. E. GEE et al., Respondents

No. 6509

Supreme Court of Idaho

April 28, 1938

APPEAL AND ERROR-APPEAL BOND, SUFFICIENCY OF-INVALIDITY-MARRIED WOMAN AS SURETY-DISMISSAL.

1. An appeal bond on which one of the sureties is a married woman is not merely defective or insufficient, but is void.

2. Where an appeal bond is void, only the filing of a valid bond within the statutory time will protect and perfect the appeal. (I. C. A., sec. 11-202.)

3. If an appeal bond is merely defective or insufficient, the defect or insufficiency is waived unless pointed out within 20 days. (I. C. A., sec. 11-203.)

4. The statutes relating to the contractual rights of a married woman are strictly construed in her behalf.

5. Statutes regarding married woman's right to contract must be construed as grants rather than restrictions.

6. Common-law disabilities, not removed by statute, are limitations on the right of married women to bind their separate estates.

7. An appeal bond executed by a married woman as surety was void notwithstanding that bond was allegedly signed for the benefit of her separate property, in that appellant had led her to believe prior to signing of bond that he intended to give or leave the property involved in the litigation to her.

APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. C. J. Taylor, Judge.

Action to quiet title. Appeal dismissed because of the invalidity of the appeal bond.

Appeal dismissed. Costs to respondent.

Wilkie & Wilkie, for Appellant.

F. A Miller, for Respondent.

GIVENS J. Holden, C. J., and Morgan, Ailshie, and Budge, JJ concur.

OPINION

GIVENS, J.

In limine we are met with a motion to dismiss the appeal because one of the sureties on the appeal bond was and is a married woman.

This court has held that under such circumstances the undertaking is not merely defective or insufficient but is void. (Farnsworth v. Viet, 39 Idaho 40, 225 P. 1023, such principle being approved in Strickfadden v. Greencreek Highway Dist., 44 Idaho 751, 260 P. 431.)

If a bond is void, only the filing of a valid bond within the statutory time (secs. 11-202, 11-203, I. C. A.) would protect and perfect the appeal. If merely defective or insufficient, the defect or insufficiency is waived unless pointed out within twenty days (sec. 11-203, I. C. A.)

If the first bond was merely defective or insufficient, no notice of the same having been given within 20 days such defect or insufficiency was waived. If on the other hand it was void ab initio, no new, or any valid bond was filed within the five days from the time the notice of appeal was served (July 27, 1937) and the rectifying affidavits of appellant and the purported surety, his daughter, Mrs. Margaret B. Bassett, were not filed (March 24, 1938) within the statutory time, i. e., five days after serving the notice (July 27, 1937) of appeal.

The announcement of invalidity of Farnsworth v. Viet, supra, has stood as the law for sixteen years without reversal or departure, and this court both before and since the Farnsworth case has strictly construed the statutes, as to the contractual rights of a married woman, in her behalf.

"'Can, then, the principle on which the liability depends be extended to cases of mere suretyship for the husband or a stranger? It seems to me it cannot. The obligations of a surety, in all other cases, is held to be stricti juris; and if his contract is void at law, there is no liability in equity founded on the consideration between the principal parties. . . . Why should a married woman be made an exception to this rule? We are to remember that her contract is absolutely void at law, and, when she is a mere surety, there is no equity springing out of the consideration. If the promise is on her own account, if she or her separate estate receive a benefit, equity will lay hold of those circumstances, and compel her property to respond to the engagement. Where these grounds of liability do not exist, there is no principle on which her estate can be made answerable. If we hold that the signing of a note as surety brings a charge upon her estate, we must go further, and hold, also, that her guaranty, her indorsement, her accommodation acceptance, her bail bond, indeed, every conceivable instrument which she may be persuaded to sign, for her husband or others, although absolutely void at law, are so far binding in equity as to charge her property with its payment. This would be a doctrine sustained by no analogies, and opposed to the soundest policy. It would go far to withdraw those checks which are intended to preserve a wife from marital influences, which may be, and often are, unduly exerted, and yet baffle all detection. The doctrine that equity regards her as feme sole, in respect to her separate estate, only admits that she may dispose of such estate without a written consent of her husband, and without the solemnities which the law in other cases requires. But her mere promise to pay money, as we have seen, is not of itself such a disposition. Courts of equity, proceeding in rem, will take hold of her estate, and appropriate it to the payment of her debts; but when her obligation is one of suretyship merely, she owes no debt at law or in equity; if not at law, which is very clear, then quite as clearly not in equity.'" (Italics ours.) (Bank of Commerce, Ltd., v. Baldwin, 14 Idaho 75, 84, 93 P. 504, 17 L. R. A. (N. S.) 676.)

"Where a married woman executes her negotiable note for an obligation for which under the law she is not permitted to bind herself, such as that of a guarantor or surety for another, or on a bail bond, or for a debt which is clearly a community obligation, her...