Chavez v. Mcknight

• Decision Date: 31 January 1857
• Citation: 1 N.M. 147
• Parties: MANUELA ANTONIA CHAVEZv.WM. S. MCKNIGHT AND JOSE MARIA GUTIERES.
• Court: New Mexico Supreme Court

1 N.M. 147

MANUELA ANTONIA CHAVEZ

v.WM. S. MCKNIGHT AND JOSE MARIA GUTIERES.

Supreme Court of the Territory of New Mexico.

Jan. 1857.

The lien acquired by mortgage upon property mortgaged cannot be divested either by the levying of process upon the mortgaged property or the sale thereof by the mortgagor or under execution.

*1 APPEAL from the district court for the first judicial district. The opinion states the case.

Ashurst and Watts, for the complainant.Smith and Tompkins, contra.

By Court, BROCCHUS, J.:

This was a bill in chancery before Chief Justice Deavenport, in the district court for the first judicial district, by Manuela Antonia Chavez, seeking relief against two executions upon judgments obtained by William S. McKnight against Jose Maria Gutieres, the husband of the petitioner, which executions were levied upon property in the possession of said Jose Maria Gutieres, and upon which the said Manuela Antonia Chavez claimed to have a prior lawful lien. The petitioner alleged that some time in the year 1826 she was married to one Jose Maria Gutieres, in the territory of New Mexico, and that she had lived with him as his lawful wife from the period of their marriage up to the time of the filing of her petition; that by virtue of said marriage her said husband became possessed of property belonging to her and inherited by her from her father, Francisco Chavez, to the amount of about thirty thousand dollars, and which her said husband received as her dot or jointure, and as part of her inheritance; that said property was inventoried at the time of its delivery to her husband by the representatives of her said father, in conformity to the laws and customs in force at that time in the territory of New Mexico; that her said husband, in the year 1852, became security to one William S. Knight, on behalf of one Jose Gutieres, for a large amount; that the said William S. McKnight prosecuted suits against the said Jose Gutieres and Jose Maria Gutieres, and obtained judgments against them in the district court for the county of Santa Ana, one for five thousand five hundred and fifty-one dollars and eighty-nine cents, and the other for one thousand nine hundred and fifty-two dollars and fifty-nine cents, and having taken out executions on the said judgments, proceeded to levy the same on the personal property of her said husband, which she alleged ought to be and of right was hers, inasmuch as her said husband had not at the time of the levying of the said executions, or at the time of her application for relief against the same, a sufficient property to pay the amount which he received from her as her dot or jointure. The petitioner further alleged that the property levied upon by the said executions was part of the produce of the property conveyed to her said husband at the time of her marriage as her dot, and set up a claim of a tacit hypothecation or mortgage upon the same, and she prayed that the said William S. McKnight and Jose Maria Gutieres be made parties respondent to her bill; that an injunction be issued to restrain the enforcement of the said executions against the said property, and that such further relief be granted as the nature and circumstances of the case might require.

In accordance with the prayer of the petitioner a temporary injunction was granted restraining and enjoining the sale of the property under the executions aforesaid, and the said Wm. S. McKnight and the said Jose Maria Gutieres were summoned to appear before the United States district court for the first judicial district of the territory of New Mexico, to answer the allegations made in the petition exhibited by the said complainant against them. Upon the hearing of the cause, one of the defendants, Wm. S. McKnight, the plaintiff in the executions, appeared by his counsel and demurred to the allegations as set forth in the petition of the complainant as insufficient in equity to entitle her to any relief. The court held that the matters and things contained in the bill were sufficient in equity to enable the complainant to maintain the same; therefore the demurrer was overruled, and the defendants given leave to answer the bill. The defendants declined answering, and the court thereupon adjudged and decreed that the injunction be made perpetual, and that the plaintiff have execution against the defendants for the costs of this suit. The defendants excepted to the ruling of the court and appealed therefrom.

*2 In the argument of this cause the counsel for the defendant have denied the right of the complainant to sue without the consent of her husband. No exception can be taken in an appeal to any proceeding in the circuit court, except such as shall have been expressly decided in that court: Act defining judicial powers, Revised Code of New Mexico, sec. 5, p. 114. The supreme court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the circuit court, or give such other judgment as to them shall seem agreeable to law: Id., sec. 7, p. 116. The defendant in the court below did not contest the right of the complainant to bring the suit in her own name, without the consent of her husband, but on the contrary tacitly confessed that right and demurred to the allegations set forth in her petition as insufficient in equity to entitle her to the relief which she sought. The only question presented to the court below was as to the sufficiency of the allegations to maintain the suit. That question alone was decided by the court, and on the exception to that decision only, is this appeal founded. This court, therefore, even if its opinion inclined in favor of the proposition argued by counsel of the appellant, would seem to be precluded from the adjudication of that question by the law defining the judicial powers of the courts of this territory. We, however, have no reluctance in expressing our opinion upon that point, although our views thereupon may be regarded as obiter dicta.

According to the civil law, a woman, on marrying, parts with many of her civil rights, and amongst the rights alienated by the conjugal association is that of appearing generally in court as plaintiff or defendant, alone or without the consent of her husband. But she does not part with the right of prosecuting suits against her husband when causes of action against him arise. Escriche, under the head of Mujer Casada, 451, says: “The woman who marries alienates from herself the power of exercising alone the greater portion of her civil rights. The interest of the conjugal association, and the deference which she owes to her husband, require her to do nothing of importance without his sanction; therefore the wife can not, without the concurrence of her husband, make a contract, or withdraw from any that she may have made, or release parties there from, or make a quasi contract, or enter into litigation stare in judicio, demanding or defending by herself or attorneys. *** But the wife does not require the express permission of her husband in order to proceed against him for his civil or criminal action.”

Such are the well-established principles of the civil law. Although a wife is thereby prohibited from entering alone into litigation with other persons without the consent of her husband, she is not prohibited from instituting and maintaining suits against him whenever she may have a legal or equitable cause of action. The civil law is commended to our highest admiration by the humane regard which it so justly and carefully maintains on behalf of the rights of woman. In pursuance of its wise and just policy towards the sex, it...