Booth Mercantile Co. v. Murphy

• Decision Date: 04 February 1908
• Citation: 14 Idaho 212,93 P. 777
• Parties: BOOTH MERCANTILE CO., a Corporation, Appellant, v. JULIA MURPHY et al., Respondents, and MARY GRIFFIN et al., Intervenors and Respondents
• Court: Idaho Supreme Court

93 P. 777

14 Idaho 212

BOOTH MERCANTILE CO., a Corporation, Appellant, v. JULIA MURPHY et al., Respondents, and MARY GRIFFIN et al., Intervenors and Respondents

Supreme Court of Idaho

February 4, 1908

MARRIED WOMAN-CONTRACT FOR HER OWN USE AND BENEFIT-CONTRACT CONCERNING HER SEPARATE PROPERTY-MARRIED WOMAN'S MORTGAGE-WHEN CERTIFICATE MAY BE CORRECTED-MORTGAGABLE INTEREST IN REAL PROPERTY.

1. Where a married woman purchases hotel furniture, furnishings and fixtures for conducting a hotel business, and executes her promissory note therefor, and at the same time executes a mortgage on her separate real property to secure the payment of such promissory note, the contract is one for her own use and benefit, and the mortgage constitutes a contract with reference to her separate property, and the debt and obligation thus incurred is enforceable against her and against her separate estate so mortgaged.

2. Where a certificate of acknowledgment was not made in compliance with the provisions of sec. 2960, Rev. Stat. prior to the amendment thereof, and it appears that the acknowledgment was in fact taken in conformity with the substantial requirements of that provision of the statute, and the facts actually existed which would have enabled the notary to attach the proper certificate of acknowledgment, the court should decree the correction of such certificate so as to comply with the statute.

3. The facts in this case considered, and held sufficient to authorize and require a decree reforming the certificate of acknowledgment so as to make it conform with the requirements of the statute.

4. Where a deceased husband's estate is found upon return of the inventory to be of less value than $1,500, and the probate court thereafter duly and regularly makes an order and decree setting the entire estate aside for the use and support of the family of the deceased, in compliance with sec. 5445, Rev. Stat., and the widow thereafter mortgages all her interest in and to such estate; held, that the mortgage so executed covers whatever right, title or interest she has in or to the estate by right of succession as an heir of her deceased husband, and that the interest so granted and encumbered is commensurate only with her rights of succession, and that a purchaser under a foreclosure sale can only acquire such rights and privileges as she has by reason of being an heir to such estate.

(Syllabus by the court.)

APPEAL from the District Court of the Fifth Judicial District for the County of Bannock. Hon. Alfred Budge, Judge.

Action by the plaintiff to foreclose a real estate mortgage. Judgment for the defendants. Plaintiff appeals. Reversed.

Judgment reversed and a new trial granted. Cause remanded with costs in favor of the appellant.

Dietrich & Clark, for Appellant.

The evidence in this case shows that the debt in question was created for the use and benefit of Mrs. Julia Murphy, and relative to her separate estate. (Northwestern etc Hypotheek Bank v. Rauch, 7 Idaho 152, 61 P. 152; Sparks v. Taylor (Tex. Civ. App.), 87 S.W. 740.)

When the acknowledgment or proof of execution of an instrument is properly made, but defectively certified, any party interested may have an action to correct the certificate. (Sec. 2971, Rev. Stat.) This statute applies to acknowledgments made by married women, and the certificate may be reformed at the time the mortgage is foreclosed. (Bunnell & Eno Inv. Co. v. Curtis, 5 Idaho 652, 51 P. 767.) An acknowledgment is good if a substantial compliance with the statute is shown, a substantial compliance being all that is necessary. (First Nat. Bank v. Glenn, 10 Idaho 224, 109 Am. St. Rep. 204, 77 P. 623; Banning v. Banning, 80 Cal. 273, 13 Am. St. Rep 156, 22 P. 210; De Arnaz v. Escandon, 59 Cal. 489; Northwestern etc. Bank v. Rauch, 5 Idaho 752, 51 P. 764; Christensen v. Hollingsworth, 6 Idaho 87, 96 Am. St. Rep. 256, 53 P. 211.)

"Any interest in real property which is capable of being transferred may be mortgaged." (Sec. 3375, Rev. Stat.; Am. & Eng. Ency. of Law, 915, 916.)

Jesse R. S. Budge, for Respondents and Intervenors.

There is no testimony, and none was offered at the trial, to show that this contract was made, or that the indebtedness evidenced thereby was incurred, for the separate use and benefit of Mrs. Murphy, or for the benefit of her separate estate, or with reference thereto. (Dernham v. Rowley, 4 Idaho 753, 44 P. 643; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399.)

Any contract signed by a married woman, in the absence of a contrary showing, is presumed to be a community obligation, and it is necessary to allege in the complaint and prove at the trial that the debt is not a community debt, but is one for the use and benefit of the married woman, or one for the benefit of her separate estate. (Dernham v. Rowley, 4 Idaho 753, 44 P. 643; Strode v. Miller, 7 Idaho 16, 59 P. 893; Holt v. Gridley, 7 Idaho 416, 64 P. 188.)

The certificate being insufficient, the mortgage was invalid, and cannot be foreclosed. (Wilson v. Wilson, 6 Idaho 597, 57 P. 708.)

Mrs. Murphy had no interest in that property, except an interest in connection with her family, and then only for the purpose for which the property was decreed to them. It was not separate estate, so far as she was concerned, for the reason that she had no title under that decree, but was simply decreed the ordinary use of the property for certain purposes. (Rands v. Brain, 5 Utah 197, 14 P. 129; Estate of Moore, 57 Cal. 437; Phelan v. Smith, 100 Cal. 158, 34 P. 667.)

AILSHIE, C. J., STEWART, J. Sullivan, J., Stewart, J., and Ailshie, C. J., concurring.

OPINION

AILSHIE, C. J.

This action was instituted to foreclose a mortgage on certain real estate situated at Pocatello, Idaho. The note and mortgage were executed on May 29, 1903, at West Jordan, Salt Lake county, Utah by the defendant, Mrs. Julia Murphy. The defendant, Mrs. Murphy, who was then residing in Utah purchased from the plaintiff some furniture, fixtures and supplies for the purpose of running and conducting a hotel business, and executed the note and mortgage in question in payment of the purchase price. At the time of entering into this contract, Mrs. Murphy was the wife of Timothy Murphy. She had, however, previously been married to Michael D. Griffin. At the time of the death of Griffin, her first husband, they were living at Pocatello, in this state. An administration was thereafter had on the Griffin estate, and upon the return of the inventory it appeared that the estate was of less value than $ 1,500, and the court, after due notice, in pursuance of sec. 5445, Rev. Stat., proceeded to and did make an order in due and regular form setting aside the entire estate, including the real property covered by the mortgage in question, for the use and benefit of the widow and minor children. At that time the family consisted of the widow, Mrs. Griffin, and her seven minor children. The proceedings in setting aside this estate appear to have been regular and in conformity with the statute and are not questioned in this case. The widow Griffin thereafter married Murphy, and early in the year of 1903 they moved to Utah where Murphy engaged in railroad work, while Mrs. Murphy conducted the hotel business. Mrs. Murphy and the minor children contested the foreclosure of this mortgage upon sundry grounds, and obtained a judgment in their favor, refusing the plaintiff any relief whatever either upon the promissory note or the mortgage executed as security therefor. The plaintiff has appealed and assigns numerous errors which are argued in the brief under five general heads. In the first place, it is contended that the contract was a Utah contract and that under the statutes of that state (sec. 1199, Rev. Stat. of 1898) a married woman may contract in all respects as if she were a feme sole. Second, it is insisted that the finding of the court that the residence of Mrs. Murphy was in Idaho instead of in Utah is erroneous and contrary to the evidence. Third, that the evidence in the case shows clearly and without contradiction that the debt was contracted for the use and benefit of Mrs. Murphy and concerning her separate estate, and that the finding of the court that it was in fact not for her use or benefit or with reference to her separate estate is wholly unsupported by the evidence. Fourth, that the evidence shows that the mortgage was duly and properly acknowledged, and was entitled to be so certified, and that the finding of the court that it was not duly and properly acknowledged was contrary to the evidence and erroneous. Fifth, that Mrs. Murphy had a mortgagable interest in the property covered by the mortgage, and that the court erred in holding otherwise.

As we view this case, it is immaterial for the purpose of this decision whether the contract was a Utah or an Idaho contract, and it is likewise immaterial whether Mrs. Murphy was, as a matter of law, at the time of entering into the contract, domiciled in Utah or Idaho. The contract was her own debt, incurred for her use and benefit. She received the consideration therefor, the goods and merchandise for which the note and mortgage were executed. Not only that, but the purchase price was secured by a contract with direct reference to her separate estate, namely, a mortgage executed by her on her separate property. (Bank of Commerce v Baldwin, ante, p. 75, 14 Idaho 75, 93 P. 504.) It has been uniformly held by this court that a married woman could bind her separate estate by a contract executed in this manner. (Dernham v. Rowley, 4 Idaho 753, 44 P. 643; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Strode v. Miller, 7 Idaho 16, 59 P. 893; Holt v. Gridley, 7 Idaho 416, 63 P. 188; Bank...