Jaeckel v. Pease

• Decision Date: 24 May 1898
• Citation: Jaeckel v. Pease, 6 Idaho 131, 53 P. 399 (Idaho 1898)
• Parties: JAECKEL v. PEASE
• Court: Idaho Supreme Court

53 P. 399

6 Idaho 131

JAECKEL v. PEASE

Supreme Court of Idaho

May 24, 1898

FORECLOSURE OF MORTGAGE-MORTGAGE DEBT-PLAINTIFF ENTITLED TO WHAT IS DUE HIM.-If, in a suit to foreclose a mortgage, the courts should decide that plaintiff is not entitled to a foreclosure, yet nevertheless the plaintiff should have judgment for any portion of the mortgage debt shown by the pleadings and proof to be due him, against the defendants personally liable therefor.

MARRIED WOMAN-COMMUNITY DEBT-CREATED FOR WIFE'S SEPARATE BENEFIT.-A married woman cannot bind herself personally for the debt of her husband, or for a community debt, and it is error to render judgment jointly against the husband and wife on a note signed by both in the absence of a showing that the debt was created for the separate use and benefit of the wife, or for the use and benefit of her separate estate.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Reversed and remanded. Costs of appeal awarded to appellant.

Charles L. Heitman, for Appellant.

The appellant, Mary A. Pease, contends that no judgment should have been rendered against her upon said promissory note in said suit; citing the case of Dernham v. Rowley, decided by the supreme court of the state of Idaho on the 9th of April 1896, and reported in 4 Idaho 753, 44 P. 643 (14 Am. & Eng. Ency. of Law, 604-621), in which it is held by this court that a married woman has no power in this state to bind herself by a promissory note such as the one described in the complaint herein, unless the debt evidenced thereby was contracted by the wife for the use of her separate property or for her own use and benefit.

No brief for respondent.

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

George H. Pease and his wife, Mary A. Pease, executed, October 15 1891, their certain promissory note for the sum of $ 909.35 to Dr. Charles F. Mussigbrod, payable one year after date and executed a mortgage to said payee, on community property occupied by said mortgagors as a residence, to secure the payment of said note. Said Mussigbrod died, and his executors assigned the said note and mortgage to plaintiff, who commenced this action on October 6, 1897, to foreclose the said mortgage. The defense against the foreclosure of said mortgage is based on the idea that the certificate of acknowledgment of the wife to said mortgage does not comply with the statute, and for that reason the mortgage is void. That part of the certificate of acknowledgment to the said mortgage relating to the acknowledgment of the wife is as follows, to wit: "And the said Mary A. Pease, wife of the said George H. Pease, having been by me first made acquainted with the contents of said instrument,...