Dernham v. Rowley

• Decision Date: 09 April 1896
• Court: Idaho Supreme Court
• Parties: DERNHAM & KAUFMANN v. ROWLEY

44 P. 643

4 Idaho 753

DERNHAM & KAUFMANN v. ROWLEY

Supreme Court of Idaho

April 9, 1896

MARRIED WOMEN-SEPARATE PROPERTY.-A married woman may contract debts for the use and benefit of her separate property, or for her own use and benefit, and thereby charge her separate property.

PRACTICE-HOW SEPARATE PROPERTY OF WIFE RENDERED LIABLE TO LEVY AND SALE.-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 for her own use of benefit.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed, with costs to respondents.

Forney Smith & Moore, for Appellants.

The only question arising in this case is, Can the separate estate of a married woman be attached in an action upon a promissory note executed by her? All persons are capable of contracting except minors, persons of unsound mind, and persons deprived of civil rights. All property of the wife owned by her before marriage, and that acquired by gift bequest, devise or descent is her separate property. (Rev. Stats., sec. 2495.) The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after marriage. (Rev. Stats., sec. 2504.) The note sued on in this action is several. It is therefore the separate promise by Ella A. Rowley, "for value received" and an express contract made by her. (Orange Nat. Bank v. Traver, 7 Saw. 216, 7 F. 146; Deering v. Boyle, 8 Kan. 356.) It will be seen by an examination of the constitution of Idaho that there is no provision therein touching the rights of married women. We must, therefore, look entirely to the statutes of this state for such law as we have, touching this question, together with the cases of Bassett v. Beam, ante, p. 107, 36 P. 501; Cartan v. David, 18 Nev. 310, 4 P. 61; Bronson v. Kinzie, 1 How. 311-315.

George W. Goode and C. J. Orland, for Respondent.

The complaint must show by its affirmative allegations, that the debt is such a one as would bring it within some rule creating a liability against a married woman. (Flanders v. Abbey, 14 Meyer's F. Dec. 170, 6 Biss. 16, F. Cas. No. 4,851; Broome v. Taylor, 76 N.Y. 565; Canal Bank v. Partee, 99 U.S. 325; Buhler v. Jennings, 49 Mich. 538, 14 N.W. 488.) Demurrer was the proper method of raising the question of the liability of the defendant, Ella A. Rowley. (Rowe v. Kohle, 4 Cal. 285; Maclay v. Love, 25 Cal. 367, 85 Am. Dec. 133, and note.) Under section 2504 the married woman's separate property is liable for her debts whether contracted before or after marriage; by the same section it is as clearly expressed, that her separate property is not liable for her husband's debts. The note of a husband and wife makes the wife but a surety. (Telford v. Garrels, 132 Ill. 550, 24 N.E. 574; Keifer v. Carusi, 7 D. C. 156; State Sav. Bank v. Scott, 10 Neb. 83, 4 N.W. 314; Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 253, 47 N.W. 104; Gosman v. Cruger, 69 N.Y. 88, 25 Am. Rep. 141; 14 Am. & Eng. Ency. of Law, secs. 12, 15, pp. 621, 623.) A note is not such a conveyance as will convey or encumber the separate property of a married woman. (Singluff v. Tindal, 40 S.C. 504, 19 S.E. 137; Merchants' etc. Assn. v. Jarvis, 92 Ky. 566, 18 S.W. 454; Chaffee v. Browne, 109 Cal. 211, 41 P. 1028.)

This is an action brought by plaintiffs, February 23, 1895, against the defendants, upon a promissory note, in form substantially as follows:

"Moscow, October 4th, 1893.

"One year after date, without grace, for value received, I promise to pay to the order of Dernham & Kaufmann, at their office in Moscow, thirteen hundred and twenty-five dollars.

(Signed) "CHARLES M. ROWLEY.

"ELLA A. ROWLEY.

"SAM YEAGER."

Ella A. Rowley was the wife of Charles M. Rowley, whose name before marriage was Ella Beals. On the twenty-third day of February, 1895, attachment was issued in said cause, and levied upon the separate and individual property of the said Ella Rowley, owned by her before marriage. The complaint alleges that Charles M. Rowley and Ella A. are husband and wife, the execution of the note, that said note is due and unpaid, and prays for a several judgment against each of the defendants. Defendant Ella A. Rowley files her separate demurrer to the complaint, and on the ground that it does not state facts sufficient to constitute a cause of action against the said defendant Ella A., for the reason that she was at all times therein mentioned a married woman. The district court sustained the demurrer, and entered judgment that the complaint in said action, so far as the same relates to Ella A. Rowley, and all proceedings thereunder, including the attachment upon the separate property of the said Ella A., be dismissed, dissolved, and discharged, to which judgment plaintiffs excepted. From this judgment the said plaintiffs appealed to this court, and assigned the following errors: "The court erred in sustaining the demurrer of the said Ella A. Rowley, etc. The court erred in ordering the attachment herein levied upon the separate property of the defendant Ella A. Rowley dismissed and discharged."

MORGAN, C. J. Huston and Sullivan, JJ., concur.

OPINION

MORGAN, C. J. (After Stating the Facts.)

The only question before this court in this case is, Can a creditor attach the separate property of a married woman upon a several promissory note executed by her without alleging and proving that the contract was made with reference to her separate property or for her personal benefit? The appellants contend that, under the statutes of Idaho a married woman may during coverture make any contract that may be made by a feme sole or by a man of lawful age. 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?

Section 3220 of the Revised Statutes of Idaho provides: "All persons are capable of contracting except minors, persons of unsound mind, and persons deprived of civil rights." That it was not intended by this section to confer upon married women the right to make any and all contracts that might be made by a feme sole is evident from the fact that the act with relation to the wife becoming a sole trader remains upon the statute book. By this act a method is provided for the wife to set up and carry on a business in her own name, and make all contracts with relation to the same in the same manner as a man may do. This act requires that sh...