Craig v. Lane, 6612

• Decision Date: 20 April 1939
• Docket Number: 6612
• Parties: LOUIS CRAIG and THELMA CRAIG, Husband and Wife, Appellants, v. SAM LANE, BURCKETT BRAY, BURCKETT BRAY, Jr., and A. T. SPRINGER, Respondents
• Court: Idaho Supreme Court

89 P.2d 1008

60 Idaho 178

LOUIS CRAIG and THELMA CRAIG, Husband and Wife, Appellants, v. SAM LANE, BURCKETT BRAY, BURCKETT BRAY, Jr., and A. T. SPRINGER, Respondents

No. 6612

Supreme Court of Idaho

April 20, 1939

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

1. Rights guaranteed by Constitution are those specifically enumerated therein or existing at common law or by statute when Constitution was adopted. (Const., art. 21, sec. 2.)

2. The Constitution gave a married woman no rights in addition to those she had at time of its adoption.

3. At common law, married woman had no right to contract generally.

4. The statutes, authorizing wife to contract with reference to her separate property for her sole use and benefit or in connection with or for benefit or incumbrance of such property, are not unconstitutional as denying her freedom of contract, equal protection of law, etc. (I. C. A., secs 31-901 et seq., 31-904.)

5. A married woman's affidavit that she intended at time of signing appeal bond as surety that her separate property should be bound thereby and voluntarily entered into suretyship contract because in her judgment it was for her own use and benefit was insufficient as stating mere conclusions. (I. C. A., secs. 31-901 et seq., 31-904.)

6. If wife's separate property is not bound by appeal bond signed by her as surety, no property is bound thereby. (I. C A., secs. 31-901 et seq., 31-904.)

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Thomas E. Buckner, Judge.

Motion to dismiss appeal. Granted.

Appeal dismissed. Costs to respondents.

Ben W Davis, for Respondents.

The respondents have moved to dismiss appellants' appeal upon the ground that no undertaking on appeal has been given as required by statute because of the fact that one of the sureties was at the time of executing the undertaking and now is, a married woman. In support of said motion, respondents cite the following authorities: Sec. 11-202 and sec. 11-203 I. C. A.; Beckstead v. Gee, 58 Idaho 758, 79 P.2d 293; Farnsworth v. Viet, 39 Idaho 40, 225 P. 1023.

Frank F. Kibler and Geo. H. van de Steeg, for Appellants.

The common-law disabilities of married women have been generally removed in Idaho. We have no express statute prohibiting a married woman from becoming surety on an appeal bond. In fact the enabling statutes permit a married woman to contract as she pleases with reference to her separate property and she is liable for her own debts. (Overland National Bank v. Halveston, 33 Idaho 489, 196 P. 217; secs. 31-903 and 31-904, I. C. A.; sec. 31-912, I. C. A.; 4 C. J. S. (Appeal and Error) 995, par. 536; Woolsey v. Brown, 74 N.Y. 82.)

Where a married woman specifically declares that in her judgment the execution of an appeal bond, involving her son, "was for her own use and benefit" and justifies as a "freeholder" she is thereupon estopped to declare that the same was not for the benefit of her separate property. The estoppel relates back to the inception of the transaction. All that is necessary to effectually bind the married woman in such a case is "something more" than the mere obligation created by law. The relationship of mother and son creates this "something more" required by court decisions. (Overland National Bank v. Halveston, supra; Bank of Commerce v. Baldwin, 14 Idaho 75, 84, 93 P. 504, 17 L. R. A., N. S., 676; Bassett v. Beam, 4 Idaho 106, 36 P. 501.)

Ariel L. Crowley, Amicus Curiae.

In the previous decisions of this court it does not appear that the provisions of the Constitution of Idaho, nor the Constitution of the United States have been brought before the court for examination as to their effect upon the determination of the question involved in this case. It is respectfully suggested that the following constitutional provision have application, and may require a determination contrary to that reached in Beckstead v. Gee, 58 Idaho 758, 79 P.2d 293, Farnsworth v. Viet, 39 Idaho 40, 225 P. 1023, and Bank of Commerce v. Baldwin, 14 Idaho 75, 93 P. 504, 17 L. R. A., N. S., 676. (Constitution of Idaho: art. 1, secs. 1, 2, 6, 7, 8, 9, 10, 11, 13, 18; art. 5, secs. 1, 26.

The following authorities are cited as supporting the proposition that a different conclusion should be reached than has been heretofore reached, in giving due effect to the constitutional provisions referred to. (State v. Nelson, 10 Idaho 522, 79 P. 79, 109 Am. St. 226, 3 Ann. Cas. 322, 67 L. R. A. 808; In re Mallon, 16 Idaho 737, 102 P. 374, 22 L. R. A., N. S., 1123; Hyatt v. Blackwell Lbr. Co., 31 Idaho 452, 172 P. 1083, 1 A. L. R. 1663; Scottish American Mtge. Co. v. Minidoka County, 47 Idaho 33, 272 P. 498, 65 A. L. R. 663.)

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

OPINION

GIVENS, J.

Respondents move to dismiss this appeal because one of the sureties on the appeal bond was at the time and is now concededly a married woman. The bond does not recite that it was given for her own use and benefit or for the use and benefit of or in connection with her separate property, but in opposition to the motion to dismiss, appellant presents her affidavit confirming that she is a married woman, asserting that she is a resident and freeholder of Canyon county, worth the amount of the undertaking, and further states:

" . . . . Lewis Craig, also a signer of said bond, is a son of the affiant by a previous marriage, and that the affiant signed said bond and executed the same, and became a surety for her said son, Lewis Craig, at her own request and for her own use and benefit, and at that time intended, and still does so intend, that her own sole and separate property should, and shall, be fully bound thereby; and that affiant freely and voluntarily entered into said suretyship contract for her said son, Lewis Craig, because and for the reason that in the judgment of affiant it was for her own use and benefit so to do and that by so doing she thereby intended to, and did, obligate her separate property to the extent of the liability as set forth and specified in said appeal bond."

Both appellants and amicus curiae urge that our previous holdings, culminating in Beckstead v. Gee, 58 Idaho 758, 79 P.2d 293, that a bond signed by a married woman not for her use or benefit or in connection with her sole and separate estate, are unconstitutional, denying married women freedom of contract, equal protection of the law, etc.

Rights guaranteed by our Constitution are those specifically enumerated therein or which existed at common law or by statute at the time our Constitution was adopted. (Vol. 1, Constitutional Debates, 230, 231, 257; Christensen v. Hollingsworth, 6 Idaho 87, 53 P. 211, 96 Am. St. 256; Shields v. Johnson, 10 Idaho 476, 79 P. 391, 3 Ann. Cas. 245; Neil v. Public Utilities Com., 32 Idaho 44, 178 P. 271; State v. Jutila, 34 Idaho 595, 202 P. 566; People v. Burnham, 35 Idaho 522, 207 P. 589; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654; Morton v. Morton Realty Co., 41 Idaho 729, 241 P. 1014; State v. Miles, 43 Idaho 46, 248 P. 442; Johnson v. Nichels, 48 Idaho 654, 284 P. 840; art. 21, sec. 2, Idaho Constitution. ) The Constitution gave a married woman no rights in addition to those she had at the time of its adoption. (Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627; United States v. Morris, 125 F. 322, 325; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869; Mobile & Ohio R. R. Co. v. State of Tennessee, 153 U.S. 486, 14 S.Ct. 968, 38 L.Ed. 793; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114, 1 Ann. Cas. 655.)

At common law a married woman had no right to contract generally. (Bank of Commerce, Ltd., v. Baldwin, 12 Idaho 202, 85 P. 497; Bank of Commerce, Ltd., v. Baldwin, 14 Idaho 75, 93 P. 504, 17 L. R. A., N. S., 676; Hall v. Johns, 17 Idaho 224, 105 P. 71; Overland National Bank v. Halveston, 33 Idaho 489, 196 P. 217.)

Tracing the delimitation or enlargement of the rights of a married woman in this respect through our decisions: Bassett v. Beam, 4 Idaho 106, 36 P. 501, held that under chapter 3, title 2, 1887 Revised Statutes, a married woman could contract to have a building and other improvements erected on her separate property. Dernham & Kaufmann v. Rowley, 4 Idaho 753, 44 P. 643, considering whether a creditor could attach the separate property of a married woman upon a promissory note executed by her, her husband and another party, without alleging and proving that the contract was made with respect to her separate property or for her special benefit, the court said:

" . . . . Under the common law, the rights and privileges of a woman, so far as making contracts were concerned, were merged in the husband at marriage. Nearly all property rights were also subject to the control of the husband. The inquiry then arises, What changes have the statutes made in the rules of the common law?"

And after considering the sections of chapter 3, title 2 of Revised Statutes of 1887 concluded:

" . . . . That in order to charge the separate property of the wife, or render it liable to levy and sale, it must be alleged in the complaint, and proven, that the debt was incurred for the use or benefit of her separate property, or was contracted by her for her own use and benefit."

The same thought is expressed and followed in Jaeckel v. Pease, 6 Idaho 131, 53 P. 399, and substantially in Holt v. Gridley, 7 Idaho 416, 420, 63 P. 188:

" . . . . Where it is sought to make the separate property of a married woman liable for debt, it must be alleged and proved that the debt is her own, or made on...