Forsythe v. Paschal
| Decision Date | 21 November 1928 |
| Docket Number | Civil 2607 |
| Citation | 271 P. 865,34 Ariz. 380 |
| Parties | B. L. FORSYTHE, Appellant, v. F. C. PASCHAL, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pima. General Jones, Judge. Judgment affirmed.
Mr Fred W. Fickett, Jr., for Appellant.
No appearance for Appellee.
B. L Forsythe, hereinafter called plaintiff, brought suit on three promissory notes in the sum of $1,400 against Gail M. Paschal and F. C. Paschal, her husband, hereinafter called defendants, praying that judgment be entered against both defendants, and that execution be issued first against the separate property of Gail M. Paschal, and, second, against the community property of both defendants. Judgment by default was entered against Gail M. Paschal, but her husband demurred to the complaint, which demurrer was by the court sustained, and a judgment was entered for him thereon, whereupon plaintiff appealed as against such judgment.
The facts set forth in the complaint must be taken as true for the purpose of this appeal, and they are substantially as follows: Prior to July 23, 1924, Gail M. Paschal, then Gail M. Grant, being a single woman, was indebted to plaintiff in the sum of $1,400. On the last-named date she married F. C Paschal, and about three months thereafter executed in favor of plaintiff the notes sued on, the consideration therefor being the pre-existing debt mentioned. Her husband was not a party to the original debt, and did not join in the notes.
There is but one question raised on the appeal, and that is whether or not community property is liable for the separate debts of either spouse contracted before marriage. Plaintiff admits that, so far as the separate debts of the parties contracted after marriage are concerned, the rule is settled for the state of Arizona in the case of Cosper v. Valley Bank, 28 Ariz. 373, 237 P. 175, and that community property is not liable therefor. He contends, however, that the law is different for such debts when they are contracted before marriage. His argument is based substantially on two points. The first is the rule in certain community property states to the effect rule in certain community property states to the effect that the community property is liable for antenuptial debts. Van Maren v Johnson, 15 Cal. 308; Dillon v. Lineker, (C.C.A.) 266 F. 688; Taylor v. Murphy, 50 Tex. 291. And the second is the maxim of "expressio unius est exclusio alterius," as applied to the provisions of Civil Code of 1913, paragraph 3853, which reads as follows:
He argues that, since the legislature expressly stated the separate property of the husband or wife should not be liable for antenuptial debts, but did not include in such exemption the community estate, the maxim of "expressio unius" implies that the community estate is liable for such debts. So far as the cases above cited from California and Texas are concerned, as we explained in Cosper v. Valley Bank, supra, both of these states belong to classes which have an entirely different theory of the nature of the community estate from that obtaining in Arizona. For the reasons set forth in the Cosper case, we think the California and Texas cases are not in point.
The other question is worthy of serious consideration. The doctrine based on the maxim of "expressio unius" is a well-established canon of statutory construction. It should never be applied, however, when the general context of the statute and the public policy of the state contradict it. Swick v. Coleman, 218 Ill. 33, 75 N.E. 807; Kinney v. Heuring, 44 Ind.App. 590, 87 N.E. 1053, 88 N.E. 865. It is used only as an aid in determining the true intent of the legislature, which is, after all, the controlling and ultimate test. Hughes v. Wallace, (Ky.) 118 S.W. 324; 36 Cyc. 1106, and cases cited. Paragraph 3854, Revised Statutes of Arizona of 1913, Civil Code, which follows immediately the paragraph relied on by plaintiff, reads as follows:
It appears, on examining these two paragraphs, that a strict application of the maxim of "expressio unius" would lead to contradictory results. If, under paragraph 3853, supra, the failure to mention the community estate as being exempt from the antenuptial debts means that the legislature intended it should be liable therefor, on the other hand, if we apply the same rule to the succeeding paragraph, the statement that the community property should be liable for community debts contracted by the husband during marriage, coupled with the failure to make it expressly liable for any other kind of debts, would exempt it from all debts not particularly mentioned. We must therefore resort to some other source to determine the real intent of the legislature in the premises. A consideration of the general nature of the marital relation in the state of Arizona may be helpful.
It is frequently, though, strictly speaking, incorrectly, stated that marriage is a civil contract. It is more accurate to call it a status arising out of a contract, and probably the best definition of marriage under the common law, as distinct from canon law, yet given, is found in the case of Hilton v. Roylance, 25 Utah 129, 85 Am. St. Rep. 821, 58 L.R.A. 723, 69 P. 660. We quote therefrom as follows:
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