Hall v. Johns

Decision Date09 November 1909
PartiesROBERT H. HALL, Appellant, v. MARGARET J. JOHNS et al., Respondents
CourtIdaho Supreme Court

CONTRACTS MADE BY WIFE FOR HER OWN SEPARATE USE AND BENEFIT-LIABILITY OF COMMUNITY PROPERTY THEREFOR-POST-NUPTIAL DEBTS OF WIFE.

1. Under the common law the rights and privileges of married women, so far as making contracts were concerned, were merged in the husband at marriage.

2. The provisions of chap. 3, title 2, of the Rev. Codes, concerning the rights of married women, are in the nature of a grant or an enlargement of the powers of the wife to make contracts as such rights existed at the common law.

3. Under the provisions of the statutes of this state, the property of a husband and wife is divided into two classes to wit, the separate property of each of the spouses and the community property.

4. The title to the community property is in the husband, and during the existence of the community, the wife's interest in the community property is a mere expectancy; his rights are active and hers are passive. But if he abandons his family or ceases to discharge his duties to them, the wife's passive rights in the com- munity property then become active and she may make contracts, especially in regard to the support of herself and family, which are collectible out of the community property. Edminston v Smith, 13 Idaho 645, 121 Am.St. 294, 92 P. 842, 14 L.R.A., N S., 871, cited with approval.

5. Under our statute it is the duty of the husband to maintain and support his wife and family. The wife is under no obligation to maintain the family out of her separate property except as provided by sec. 2688, Rev. Codes.

6. The community property is not bound for the payment of post-nuptial contracts of the wife made for the use and benefit of her own separate property.

7. Under the common law, the legal existence of the wife at the date of the marriage merged in that of her husband.

8. The statutes of this state empower the wife to bind her separate property by contracts entered into respecting the same or for her own use and benefit, and she has no power to burden the community property with such contracts.

9. The wife cannot either directly or indirectly make the community property liable for her debts which are contracts for the benefit of her separate property for own use and benefit.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Action to compel the husband to pay out of the community property the debt of the wife contracted by her for her own use and benefit and for the benefit of her separate property. Judgment against plaintiff. Affirmed.

Judgment of the trial court sustained. Costs awarded to respondent.

Morgan & Morgan, for Appellant.

The statute has modified the common law in so far as it renders the separate property of the wife liable for her debts and exempts the separate property of the husband. The liability of the husband, to the extent of the community property, still exists, for the reason that no statute has been enacted, in Idaho, exempting him from such liability. (Civil Code, secs. 2677, 2684, 2685; Van Maren v. Johnson, 15 Cal. 308; Vlautin v. Bumpus, 35 Cal. 214; Patterson v. Frazer (Tex. Civ. App.), 93 S.W. 146.)

One of the effects of the contract of a married man is to render his separate property and the community property liable to be taken for a debt thereby created, and the wife, under such circumstances, is liable to the extent of the community property. It is for a like construction as to the effect of a wife's contract and for a like liability on the part of the husband that we contend. (Deering v. Boyle, 8 Kan. 525 12 Am. Rep. 480.)

Forney & Moore, for Respondents.

Title to the community property is in the husband. During the existence of the community the wife's interest in the community property is a mere expectancy. (Rev. Codes, sec. 2686; Property Rights of Married Women, Platt, secs. 37, 38; Van Maren v. Johnson, 15 Cal. 308; Packard v. Arellanes, 17 Cal. 537; Greiner v. Greiner, 58 Cal. 119; Directors v. Abila, 106 Cal. 355, 39 P. 794; Spreckels v. Spreckels, 116 Cal. 346, 58 Am. St. 170, 48 P. 228, 36 L. R. A. 497; Ray v. Ray, 1 Idaho 566; Wilson v. Wilson, 6 Idaho 597, 57 P. 708; Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L. R. A. 60.) The husband must maintain and support the wife and family. The wife is under no obligation to maintain the family out of her separate property except when the husband has no separate property and they no community property, and he from infirmity is not able or competent to support himself. (Rev. Codes, secs. 2674, 2685, 2688, 4479; Edminston v. Smith, 13 Idaho 645, 121 Am. St. 294, 92 P. 842, 14 L. R. A., N. S., 871.)

A married woman cannot bind herself for a community debt unless the debt was contracted for her own use and benefit. ( Dernham & Kaufman v. Rowley, 4 Idaho 753, 44 P. 643; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Strode v. Miller, 7 Idaho 16, 59 P. 893; Holt v. Gridley, 7 Idaho 416, 63 P. 188; Bank v. Baldwin, 12 Idaho 202, 85 P. 497.) The community property cannot be bound by the post-nuptial contracts of the wife, which bind her separate property. (Rev. Codes, sec. 2686; Ballinger on Community Property, sec. 116; Stewart on Husband and Wife, secs. 316, 317.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought to recover judgment for a sum of money which the plaintiff was compelled to pay one William Hunter on three certain promissory notes which he signed as surety with the defendant Margaret J. Johns, the wife of the defendant Frank Johns, whereby she borrowed money from said Hunter for her own use and benefit and while the defendants were husband and wife. The plaintiff prays for judgment against both defendants, and, further, that the court direct that said judgment be satisfied out of the separate property of the defendant, Margaret J. Johns, and the community property of said husband and wife. Margaret J. Johns failed to appear or answer, and her default was entered. The defendant, Frank Johns, answered and denied his liability for the debts of his wife contracted after marriage, and demanded judgment against the plaintiff for his costs.

The case was tried by the court without a jury, and findings and judgment were made and entered against Margaret J. Johns for the full amount of said notes and interest, and judgment entered in favor of the defendant Frank Johns for his costs. From the judgment in favor of the latter the plaintiff has appealed.

The entering of judgment in favor of Frank Johns and in not directing the judgment entered to be satisfied out of the separate property of Margaret J. Johns and the community property of said Margaret J. and Frank Johns is assigned as error.

It is contended by counsel (1) that by the common law the husband was liable for any debt which his wife might legally contract, and, since that law constitutes the basis of our jurisprudence, rights and liabilities must be determined in accordance with its principles, except so far as they are modified by statute; (2) that the statute has modified the common law in so far as it renders the separate property of the wife liable for her debts and exempts the separate property of the husband from liability; (3) that the liability of the husband for the post-nuptial debts of the wife to the extent of the community property still exists, for the reason that no statute has been enacted in this state exempting it from such liability.

The first two contentions above mentioned are no doubt correct, but we cannot concur in the third. Under the common law the rights and privileges of a married woman, so far as making contracts were concerned, were merged in the husband at marriage. (Dernham et al. v. Rowley, 4 Idaho 753, 44 P. 643.) The provisions of chap. 3, title 2, of the Rev. Codes of Idaho, concerning the rights of married women, are in the nature of a grant or an enlargement of the powers of the wife, as such rights existed at the common law in regard to her right to make contracts and to her separate property. By the statutes of this state, the property of a husband and wife is divided into two classes, to wit, the separate property of each of the spouses, and the community property. (Rev. Codes, secs. 2676, 2679 and 2680.) The title to the community property is in the husband, and during the existence of the community, the wife's interest in the community property is a mere expectancy. During that period, the husband's rights in reference to such property are active and hers merely passive; but if he abandons his family or ceases to discharge his duties to them so far as supporting them is concerned, the wife's passive rights in the community then become active and she may make contracts in regard to the support and maintenance of the family, which are collectible out of the community property. However, the interest of the wife is so vested in her that the husband cannot deprive her of it by voluntary alienation for the mere purpose of divesting her of her claim to it. (Platt's Property Rights of Married Women, secs. 37, 38. See, also, Van Maren v. Johnson, 15 Cal. 308; Packard v. Arellanes, 17 Cal. 525; Greiner v. Greiner, 58 Cal. 115; Directors v. Abila, 106 Cal. 355, 39 P. 794, Spreckels v. Spreckels, 116 Cal. 339, 58 Am. St. 170, 48 P. 228, 36 L. R. A. 497; Ray v. Ray, 1 Idaho 566; Wilson v. Wilson, 6 Idaho 597, 57 P. 708; Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L. R. A. 60; Bank of Commerce v. Baldwin, 14 Idaho 75, 93 P. 504, 17 L. R. A., N. S., 676.)

Sec. 2686, Rev. Codes, is as follows:

"The husband has the management and control of the...

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