Grand Island Banking Company v. Wright
| Decision Date | 02 February 1898 |
| Docket Number | 6538 |
| Citation | 74 N.W. 82,53 Neb. 574 |
| Parties | GRAND ISLAND BANKING COMPANY ET AL., APPELLANTS, v. MARY E. WRIGHT ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Hall county. Heard below before HARRISON, J. Affirmed.
AFFIRMED.
Charles G. Ryan, for appellants.
W. H Thompson, contra.
NORVAL J. HARRISON, C. J., took no part in the opinion. SULLIVAN, J., and RAGAN, C., concurring. RYAN, C., IRVINE, C., dissenting.
The Grand Island Banking Company and John Lang each brought a separate action in the district court of Hall county against Mary E. Wright and Frederick Wright, wife and husband, to foreclose two real estate mortgages upon the same property, given by the defendants to secure promissory notes executed by them. Subsequently the suits were consolidated by consent of parties, a decree of foreclosure was entered, and the mortgaged premises were sold thereunder; but the proceeds were insufficient to pay the amount due upon the mortgages. Applications for deficiency judgments were made by the plaintiffs, which were denied as to the defendant Mary E. Wright, but such judgment was rendered against the said Frederick Wright in favor of each of the plaintiffs for the full amount due them respectively, after applying the proceeds arising from the sale of the mortgaged property. Plaintiffs appeal from the decision denying their applications for judgments in deficiency against Mary E. Wright. The sole question in the case is whether she was liable to a personal judgment upon either of the notes secured by the mortgages. It is undisputed that the notes and mortgages were signed by both defendants, that the real estate covered by the mortgages at the time they were executed was owned by Mary E. Wright, who was then a married woman living with her husband, and that in neither of the notes or mortgages is there any stipulation to the effect that they were given with reference to her separate property, or that her estate generally should be bound for the payment of the debts secured by said mortgages. There is to be found in the bill of exceptions evidence tending to establish that the notes were executed to obtain loans made to the husband alone for his individual use and benefit; that no part of the debts was contracted by the wife, or in her behalf; that she signed the notes as surety merely for Mr. Wright, there being no agreement or understanding of any kind, nor any fact or circumstances proven, from which an inference can be drawn that her property, other than that covered by the mortgages, if any she possessed, which is not shown, should be liable for the payment of the notes. We are persuaded that the evidence adduced was sufficient to authorize the trial court in finding that the notes were not made with reference to Mrs. Wright's separate estate, or that she agreed or intended to bind the same, except to the extent of the property actually pledged by the mortgages. Under the facts disclosed by this record was either of the plaintiffs entitled to a deficiency judgment against Mrs. Wright?
The important question that confronts us in this case is the liability of a married woman on her contracts of suretyship. The solution of this question depends upon the extent of the power conferred upon her by the legislature to create debts to be paid out of her separate property, since, at common law, a married woman is wholly incompetent to contract in her own name, and this rule is in force in this state unless it has been abrogated in whole or in part by statute. By section 1, chapter 53, Compiled Statutes, the property which a woman may own at the time of her marriage, and the rents, issues, and profits, or proceeds thereof, as well as any property subsequently acquired by descent, devise, or the gift from any person except her husband, are her sole and separate property, and not subject to the disposal of her husband or liable for his debts, except for necessaries furnished the family, and not then until execution against the husband for such indebtedness has been returned unsatisfied for want of property whereon to make a levy. Section 2 declares: "A married woman, while the marriage relation subsists, may bargain, sell, and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property." Section 3 provides: "A woman may, while married, sue and be sued, in the same manner as if she were unmarried." Section 4 is in this language: "Any married woman may carry on trade or business, and perform any labor or services on her sole and separate account; and the earnings of any married woman, from her trade, business, labor, or services, shall be her sole and separate property, and may be used and invested by her in her own name."
Thus it will be observed the legislature has to some extent removed the common-law disability of a married woman. In this state she may acquire and hold property in her own right, and may engage in business on her separate account, and her earnings derived either from such trade or business or from her labor or services she owns in her own right. The implied power of a feme covert to contract is given by the last section quoted; but this only extends to her separate trade or business and to contracts with reference to her personal services. The express authority conferred upon married women to enter into contracts is to be found in section 2 copied above. But this statute does not expressly, nor by implication, enlarge a wife's capacity to contract generally. She can buy and sell property in her own name and upon her own account, and enter into valid contracts with reference to her separate estate the same as if she were a feme sole, or as a married man may in relation to his property. The statute does not undertake to confer upon a married woman an unrestricted power to make contracts, but such right is limited to contracts made with reference to, and upon the faith and credit of, her separate property or estate. Upon such contract she is liable, but all her other engagements and obligations are void as at common law. To hold unqualifiedly that a married woman has the same right to enter into contracts, and to the same extent, as a man would be to disregard the qualifying clause of said section 2, which confers upon her the authority to "enter into any contract with reference to the same [her property] in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property." If the legislature had intended to wholly remove the common-law disabilities of a married woman, and give her general power to make contracts of all kinds, this intention, doubtless, would have been expressed in apt and appropriate language. It would have expressly enacted that she could bind herself and her property by her general engagements whether made or entered into for the benefit, or on account of, her separate property or not, instead of empowering her to contract alone with reference to her own property, trade, and business. In construing this statute it is important to bear in mind that the legislature was not attempting to impose disabilities upon married women, but was engaged in removing some of those already existing. She can contract only so far as her disabilities have been so removed by the legislature. The statute requires that contracts, to be valid, must be entered into with reference to her separate property, and it is for the courts to so construe this enactment as to carry out the legislative will. It is true section 3 permits a married woman to sue and be sued, but this does not authorize the recovery of a judgment against her when no cause of action exists, nor does it attempt to declare what contracts of hers will support an action; what are valid or what are nugatory. The construction we have given the statute is in accord with numerous decisions of this court. (Davis v. First Nat. Bank of Cheyenne, 5 Neb. 242; Hale v. Christy, 8 Neb. 264; Spaun v. Mercer, 8 Neb. 357, 1 N.W. 245; State Savings Bank v. Scott, 10 Neb. 83, 4 N.W. 314; Barnum v. Young, 10 Neb. 309, 4 N.W. 1054; Gillespie v. Smith, 20 Neb. 455, 30 N.W. 526; Eckman v. Scott, 34 Neb. 817, 52 N.W. 822; Godfrey v. Megahan, 38 Neb. 748, 57 N.W. 284; Buffalo County Nat. Bank v. Sharpe, 40 Neb. 123, 58 N.W. 734; McKinney v. Hopwood, 46 Neb. 871, 65 N.W. 1055.)
Hale v. Christy, cited above, was an action to foreclose a mortgage given by the defendants, husband and wife, to secure their promissory note. The trial court found that the wife was personally liable for the debt. This court held she incurred no personal obligation by executing the note. The third paragraph of the syllabus reads as follows: It is suggested that the holding in that case as to the personal liability of Mrs. Christy was mere obiter for the reason the question did not then arise, and could not until the court came to render a deficiency judgment. The finding in the decree of foreclosure that Mrs. Christy was personally liable for the debt would have bound her, unless set aside, so that the decision on that proposition was not obiter. This is the effect of the decision in Stover v. Tompkins, 34 Neb. 465, 51 N.W. 1040. We quote the first clause of the syllabus of the case: "Where a grantee of real...
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