Dale v. Marvin

• Decision Date: 22 June 1915
• Citation: 148 P. 1151,76 Or. 528
• Parties: DALE v. MARVIN, SHERIFF, ET AL.
• Court: Oregon Supreme Court

148 P. 1151

76 Or. 528

DALE v. MARVIN, SHERIFF, ET AL.

Supreme Court of Oregon

June 22, 1915

In Banc. On petition for rehearing. Denied. For former opinion see 148 P. 1116.

MOORE, C.J.

In a petition for a rehearing it is maintained that an error was committed in holding the statute of limitations was not extended as to the plaintiff whose husband, in order to evidence the purchase price of goods, wares, and merchandise bought for and used as family expenses, had executed therefor a promissory note upon which obligation a judgment was rendered, and that, section 7039, L. O. L., having been obtained from Iowa, the construction placed upon the statute by the Supreme Court of that state prior to its adoption in Oregon is controlling herein. Our statute was enacted in the year 1878. In Lawrence v. Sinnamon, 24 Iowa, 80 decided January 28, 1867, in construing the Iowa statute, it was held that the husband, being the head of the family, was not only authorized to make purchases of household expenses in his own name, but to change the form of evidence of the indebtedness arising therefrom by executing his promissory note for the amount, thereby taking the case out of the statute of limitations as to the wife. In Polly v Walker, 60 Iowa, 86, 14 N.W. 137, decided December 7 1882, a judgment was rendered against a husband, with his consent, in the year 1867, for the value of goods purchased for use in the family as necessaries. In March 1881, the husband being insolvent and the judgment remaining unpaid, an execution issued thereon was levied upon the real property of the wife, who thereupon instituted a suit to enjoin the sale. A cross-bill was interposed by the defendants, alleging that the husband and wife were liable for the value of the goods so sold, and that taking a judgment against him alone did not in any manner release her from the debt or relieve her property from liability. A demurrer to the cross-bill, on the ground that the cause of suit was barred by the statute of limitations, was sustained and the defendants appealed. In affirming the decree, Mr. Justice Rothrock, speaking for the court, says: "Counsel for appellant contends that although this debt was contracted prior to 1867, and suit was brought in that year against the husband alone, and judgment obtained against him without any reference to the wife or her property, * * * the judgment, or rather the original claim, may now be made a charge upon her property, because the judgment is not barred by the statute of limitations as against the husband. In other words, it is claimed that so long as the debt exists against the husband it may be enforced as a charge or lien upon the wife's property; and reliance is had upon the case of Lawrence v. Sinnamon, 24 Iowa, 80." Farther in the...