Cartan, McCarthy & Co. v. David

• Decision Date: 01 April 1884
• Docket Number: No. 1181.,1181.
• Citation: 18 Nev. 310
• Parties: CARTAN, McCARTHY & CO., RESPONDENTS, v. EVAN DAVID, ET AL., DEFENDANTS, MRS. LOUISE C. ROBERTS, APPELLANT.
• Court: Nevada Supreme Court

18 Nev. 310

CARTAN, McCARTHY & CO., RESPONDENTS, v. EVAN DAVID, ET AL., DEFENDANTS, MRS. LOUISE C. ROBERTS, APPELLANT.

No. 1181.

SUPREME COURT OF THE STATE OF NEVADA

APRIL TERM, 1884

April 1, 1884

REPORTS OF CASES

MARRIED WOMEN—CONTRACTS BY—SEPARATE ESTATE—SECURITY FOR HUSBAND.—The assignment by a married woman of a note and mortgage upon real estate, the same being her separate property, as collateral security for the payment of her husband's debts, without any fraud or improper inducements, and with the intention of binding her separate estate, is a valid contract, and is enforceable in equity against her separate estate.

IDEM—INTENTION TO BIND SEPARATE ESTATE—HOW EXPRESSED.—The intention of Mrs. Roberts to make the debt a charge upon her separate estate does not rest entirely upon parol evidence. It is made manifest by the acts and conduct of the parties, by the exhibits, and by the written indorsement and delivery of her note and mortgage. The contract, as made, is an express charge upon her separate estate for the payment of her husband's debt.

RIGHTS AND LIABILITIES OF MARRIED WOMEN.—Married women having, by statute, been granted the right to control their separate property, must assume the risks which ordinarily follow. Having the right to make contracts respecting their separate estates, they must be held liable to the same extent as other citizens.

CONTRACT OF MARRIED WOMEN—STATUTE OF FRAUDS—WHEN NOT APPLICABLE—CONSIDERATION FOR ASSIGNMENT OF NOTE AND MORTGAGE.—The statute of frauds has no application to the facts of this case. It was not essential to the validity of the contract to have the consideration of the indorsement expressed upon the note, or mortgage in writing. The assignment being made by the wife for the purpose of securing the note of her husband at the same time her husband's note was given, and as part of the same transaction, the consideration for the husband's note will be regarded as the consideration for the collateral security of the wife, and no new or additional promise by her is necessary. The transaction must be treated as an original undertaking on the part of the wife, and cannot be considered as a mere parol promise to pay the debt of another.

ASSIGNMENT OF NOTE AND MORTGAGE BY MARRIED WOMEN—HOW MADE—ACKNOWLEDGMENT.—The assignment by a married woman of a note and mortgage upon real estate, being her separate property, may be made by merely indorsing her name upon the back of the note. Such note and mortgage are mere chattels and the assignment thereof is not such a contract respecting her real estate as the statute requires to be acknowledged separate and apart from her husband.

IDEM—EXECUTED CONTRACT.—When a contract is fully executed on both sides the rights of the parties become fixed and neither party can interfere with such rights by pleading the statute of frauds.

APPEAL from the District Court of the Second Judicial District, Ormsby County.

The facts are stated in the opinion.

Harris & Bartine for Appellant:

I. The evidence, in this case, shows that the entire engagement of Mrs. Roberts was one of surety for the debts of her husband. Under the laws of this state, the only contracts which a married woman can make are those respecting property. (1 Comp. Laws, 169.)

II. The English equity doctrine which considers a promissory note executed by a married woman a charge upon her separate estate has no application. Even if it had, the weight of American authority is against it. (Wright v. Brown, 8 Wright (Penn.) 224; Metcalf v. Cook, 2 R. I. 355; Leacraft v. Hedden, 3 Green's Ch. (N. J.) 512; Perkins v. Elliott, 23 N. J. Eq. 526; Litton v. Baldwin, 8 Hump. (Tenn.) 209; Montgomery v. Ag. Bank, 10 S. & M. (Miss.) 567; Patterson v. Lawrence, 90 Ill. 175; Kantrowitz v. Prather, 31 Ind. 92; Reed v. Buys, 44 Mich. 80; Ewing v. Smith, 3 Des. (S. C.) 417.) In New York, Massachusetts and South Carolina the doctrine is accepted, but with the important qualification that the instrument must expressly charge her estate, and that no other evidence will be admitted to show the intention. (Yale v. Dederer, 18 N. Y. 265; Id. 22 N. Y. 450; Id. 68 N. Y. 329; Gosman v. Cruger, 69 N. Y. 87; Willard v. Eastham, 15 Gray 328; Knox v. Jordan, 5 Jones' Eq. (N. C.) 175. See, also, Levi v. Earl, 30 Oh. St. 147; Rice v. Railroad, 32 Id. 380.)

III. Where the estate is statutory and legal, the statute governs, and courts of equity have no right to disregard its provisions. (Wilkinson v. Cheatham, 45 Ala. 338; Nunns v. Givhans, 45 Ala. 374; O'Connor v. Chamberlain, 59 Ala. 431; Meyers v. Rahte, 46 Wis. 658; Maclay v. Love, 25 Cal. 367; Dollner v. Snow, 16 Fla. 86; Sweazy v. Kammer, 51 Iowa 642; West v. Laraway, 28 Mich. 464.)

IV. A promissory note is not per se a contract respecting property. It depends upon the nature of the transaction in which it is executed. Standing by itself it is merely a personal promise, and in no case can an undertaking of suretyship, as evidenced by the signing of a promissory note, be a contract respecting property. (Sweazy v. Kammer, 51 Iowa 642; Jones v. Crosthwaite, 17 Iowa 393; Wolf v. Van Metre, 23 Iowa 397; Reed v. Buys, 44 Mich. 80; Russel v. People's Savings Bank, 39 Mich. 671; De Vries v. Conklin, 22 Mich. 256; West v. Laraway, 28 Mich. 465; Ames v. Foster, 42 N. H. 382; Shannon v. Canney, 44 N. H. 592; Brookings v. White, 49 Me. 482; Willard v. Eastham, 15 Gray 328; Athol Machine Co. v. Fuller, 107 Mass. 437; Hoker v. Boggs, 63 Ill. 161; Coats v. McKee, 26 Ind. 223; Savings Bank v. Scott, 10 Neb. 83; Id. 371; Smith v. Greer, 31 Cal. 478.)

V. The alleged assignment of the David note and mortgage was an undertaking in substance by Mrs. Roberts to answer for the debt of her husband, and is within the statute of frauds. (Brandt on Sureties, secs. 22, 60, 66; Spear v. Ward, 20 Cal. 659; Brown on Stat. of F. 173, 174, 346; Mayer v. Adrian, 77 N. C. 83; Washington Ice Co. v. Webster, 62 Me. 341; Baptist Ch. v. Bigelow, 16 Wend. 28; Williams v. Morris, 95 U. S. 444; Pierce v. Corf, Law R. 9 Q. B. 210.) It is necessary that all the substantial matter of agreement shall be connected with the signature of the party to be charged. The law admits of nothing by way of substitute for the actual signature. (1 Comp. Laws, 289; Brown on the Stat. of F. sec. 363; Barry v. Law, 1 Cranch C. C. 77; Newby v. Rogers, 40 Ind. 9; Groover v. Warfield, 50 Ga. 644; Graham v. Musson, 5 Bing. N. C. 243; Graham v. Fretwell, 3 M. & G. 368; Van Doren v. Tjader, 1 Nev. 380; Wilson v. Martin, 74 Pa. St. 159.)

Trenmor Coffin, for Respondents:

I. If Mrs. Roberts had been a feme sole, she could have pledged her personal property to secure the promissory note of another by the delivery of her personal property to the payee of the note at the time of its execution, or she could have assigned a note and mortgage held by her as collateral security for the debt of another. The debt of the person to whom the security was given would be a sufficient consideration to support the assignment. (Gibson v. Milne, 1 Nev. 526; Lawrence v. Knap, 1 Root 248; Kansas M. Co. v. Gandy, 11 Neb. 448; 1 Jones on Mortg., secs. 615, 778; Worcester National Bank v. Cheeney, 87 Ill. 607; Davidson v. King, 51 Ind. 224; Moore v. Fuller, 6 Or. 272; Baylies on Sur. and Guar., 53, 58; Brandt on Sur. and Guar., secs. 6, 7, 8.)

II. When a married woman signs a promissory note and has separate property, her husband cuts no figure in the same. A suit may be maintained on the note, a judgment obtained and her property taken in execution, the same as in the case of an unmarried woman or of a man. Her separate property may be subject to the payment of her promissory note, or the joint note of her and her husband, especially when credit was given upon the faith of her separate property, or where she understood or intended that her separate property should be liable for the satisfaction of the note. (Williams v. Urmston, 35 Ohio St. 296; Phillips v. Graves, 20 Ohio St. 371; Avery v. Vansickle, 35 Ohio St. 270; Kimm v. Weippert, 46 Mo. 532; Miller v. Brown, 47 Mo. 504; Metropolitan Bank v. Taylor, 62 Mo. 338; Deering v. Boyle, 8 Kan. 525; Bell v. Kellar, 13 B. Monroe 381; Cowles v. Morgan, 34 Ala. 535; Burnett v. Hawpes, 25 Grat. 481; Radford v. Carwile, 13 W. Va. 572; Moore v. Fuller, 6 Or. 274; Gray v. Holland, 9 Or. 512; Dyett v. North American Coal Co., 20 Wend. 570; Martin v. Dwelley, 6 Wend. 9; Jaques v. Methodist Church, 17 Johns. 549; Vanderheyden v. Mallory, 1 N. Y. 452; Corn Exchange v. Babcock, 42 N. Y. 613; Mc Vey v. Cantrell, 70 N. Y. 295; Tiemeyer v. Turnquist, 85 N. Y. 516; Merchant's Bank v. Hall, 83 N. Y. 338; Emerson v. Clayton, 32 Ill. 496; Pomeroy v. Man. Ins. Co., 40 Ill. 399, 402; Williams v. Hugunin, 69 Ill. 214; Elliott v. Gower, 12 R. I. 79; Davis v. Bank of Cheyenne, 5 Neb., 242; Kansas Manf. Co. v. Gandy, 11 Neb. 448; Priest v. Cone, 51 Vt. 495; Collins v. Dawley, 4 Col. 138; Porter v. Haley, 55 Miss. 66; Wright v. Remington, 12 Vroom 48; Todd v. Lee, 15 Wis. 380; Krouskop v. Shontz, 51 Wis. 204; Pelzer v. Campbell, 15 S. C. 581; Slaughter v. Glenn, 98 U. S. 242; Smith v. Thompson, 2 McArthur (D. C.) 291; Dallas v. Heard, 32 Ga. 604; American Ins. Co. v. Avery, 60 Ind. 570; Frazier v. Brownlow, 3 Ired. Eq. (N. C.) 237; Newlin v. Freeman, 4 Ired. Eq. 312; Allen v. Fuller, 118 Mass. 402; Noursc v. Henshaw, 123 Mass. 96; Major v. Holmes, 124 Mass. 108; Gardner v. Bean, 124 Mass. 347; Kenworthy v. Sawyer, 125 Mass. 28; Goodnow v. Hill, 125 Mass. 587; Wood v. Orford, 52 Cal. 412; Parry v. Kelly, 52 Cal. 334; Marlow v. Barlew, 53 Cal. 456; Alexander v. Bouton, 55 Cal. 15; Brickell v. Batchelder, 62 Cal. 639; Orange Bank v. Traver, 7 Saw. 211; Allers v. Forbes, 59 Md. 374; 1 Bish. Mar. Wom., secs. 848, 858, 864, 879.)

III. When plaintiffs satisfied their judgment against Oliver Roberts, and Roberts and wife joined in the execution of a promissory note therefor, it was was an original undertaking on the part of Mrs. Roberts and not...