First Nat. Bank of Southern Oregon v. Leonard

• Decision Date: 05 February 1900
• Parties: FIRST NAT. BANK OF SOUTHERN OREGON v. LEONARD et ux.
• Court: Oregon Supreme Court

59 P. 873

36 Or. 390

FIRST NAT. BANK OF SOUTHERN OREGON v. LEONARD et ux.

Supreme Court of Oregon

February 5, 1900

Appeal from circuit court, Josephine county; H.K. Hanna, Judge.

Action by the First National Bank of Southern Oregon against Lawrence Leonard and wife. From a decree against the husband alone, plaintiff appeals. Reversed.

This is a suit to foreclose a mortgage executed by the defendants as husband and wife to secure the husband's note for $3,000 which mortgage contains the following covenant: "And the said Lawrence Leonard and Mary Ellen Leonard, his wife, their heirs, executors, and administrators, doth covenant and agree to pay unto the said party of the second part, its executors and administrators or assigns, the sum as above mentioned." The consideration of the note comprises a prior indebtedness of the husband's, some $1,700 in amount, and cash advanced at the time of its execution presumably to the husband, about $1,300. Prior to the execution of the note and mortgage, the wife was the owner of the land incumbered thereby, and the husband of other premises; but at the time of giving the mortgage the husband and wife exchanged deeds to the lands held by each respectively, so that the mortgage covered his property only. The arrangement was a matter conceived wholly between them and it is doubtful whether the plaintiff knew of it when the mortgage was delivered.

Robert G. Smith, for appellant.

Austin S. Hammond, for respondents.

WOLVERTON, C.J. (after stating the facts).

The sole question presented is whether the said covenant for the payment of the debt constitutes such an undertaking on the part of the wife that a personal decree may be entered against her, enforceable against her separate property. The question is one susceptible of solution under the statutory provisions touching the rights and authority of a married woman to contract, and her ensuing liabilities. Our statute makes the following provisions as bearing upon the controversy, viz.: "The property and pecuniary rights of every married woman at the time of her marriage or afterwards acquired shall not be subject to the debts or contracts of her husband, and she may manage, sell, convey or devise the same by will to the same extent and in the same manner that her husband can property belonging to him." Sess.Laws 1893, p. 170, § 2992. "Contracts may be made by a wife and liabilities incurred, and the same enforced by or against her to the same extent and in the same maner as if she were unmarried." Hill's Ann.Laws, § 2997. "All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed; provided, that this act shall not confer the right to vote or hold office upon the wife except as is otherwise provided by law; and for any unjust usurpation of her property or natural rights she shall have the same right to appeal in her own name alone to the courts of law or equity for redress that the husband has." Id. § 2998. The section first quoted was originally adopted in 1878, but was amended in 1893 by eliminating therefrom the words "by gift, devise, or inheritance," following the word "acquired." The second section was adopted in 1878, and the third in 1880. As early as 1876 it was decided that the wife had the right to sell or mortgage her separate property for the payment of the husband's debts, under the law then in force, touching the right to acquire and hold a separate estate. Moore v. Fuller, 6 Or. 272. And again, in 1881, it was held that the mortgage of the wife's separate property to secure the debts of the husband placed the property in the position of a surety or guarantor, and that it would be discharged by anything that would discharge a surety or guarantor personally liable. Gray v Holland, 9 Or. 512. But in neither of these cases was the wife's personal liability upon an undertaking to pay the husband's debts presented or determined. It may be remarked, in passing, that separate property acts do not, in themselves, enable a married woman to make personal contracts. This may be regarded as settled law. 14 Am. & Eng.Enc.Law, 609. There can be no cavil touching the purpose of the sections of the statute alluded to. Under the common law, and even by earlier statutes, the wife was incumbered and hampered by many disabilities that did not subsist as it respects the husband, which grew out of the marriage relation. The design of the legislature undoubtedly was to remove these disabilities, and to place the wife upon an equal footing, as it respects the control and management of her individual or separate estate and property, and as it pertains to the right, power, and authority to contract and incur liabilities, with like responsibilities and obligations and amenable to like remedies for their enforcement as the husband. By section 2992 she is empowered and authorized to manage, sell, convey, and devise by will any property that she may have acquired from any source, in like manner and to the same extent that her husband can property belonging to him; and by section 2997 she may contract and incur liabilities, and the same may be enforced against her, as if she were unmarried, or occupying the position of a feme sole. A statute of similar import to section 2997, but not so strongly worded in favor of the wife's right to contract and incur liabilities, has received construction in North Dakota. Mortgage Co. v. Stevens, 3 N.D. 265, 55 N.W. 578. It declares that "either husband or wife may enter into any engagement or transaction with the...