Levi v. Earl

• Court: Ohio Supreme Court
• Writing for the Court: JOHNSON, J.
• Citation: Levi v. Earl, 30 Ohio St. 147 (Ohio 1876)
• Decision Date: 01 December 1876
• Parties: HERMAN LEVI v. E. EARL, FREDERICK STRAEHLE AND ROSINE STRAEHLE, WIFE OF FREDERICK STRAEHLE.

30 Ohio St. 147

HERMAN LEVI v. E. EARL, FREDERICK STRAEHLE AND ROSINE STRAEHLE, WIFE OF FREDERICK STRAEHLE.

Supreme Court of Ohio

DECEMBER TERM, 1876

December 1, 1876

1. By the act concerning the rights of married women, passed April 3, 1861 (S. & S. 389), as amended March 23, 1866 (S. & S. 391), the general estate, as well as the separate estate, of a married woman, belonging to her at her marriage, and all her estate, legal and equitable, which may come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, together with the rents and issues thereof, becomes her separate property and under her control, free from the marital rights of the husband at common law over the same.

2. By these statutes the wife is authorized to make contracts, in her own name, for labor and materials for improving, repairing, and cultivating her separate estate, as defined by this statute, and for leasing the same for a term not exceeding three years. Upon such contracts the wife is liable to an action at law, and to a judgment and execution, as a feme sole, but all her other engagements, debts, or obligations are void at common law, the same as before the passage of said acts.

3. By these statutes the marital rights of the husband were divested as to the wife's general estate, and the wife was invested with the control of the same, and could bind it, not only by the contracts which she was authorized to make in her own name, but to the same extent as she could charge her separate estate in equity, before said statutes were passed.

4. The power of a court of equity to charge the separate estate of a married woman, as it existed and was exercised prior to said statutes, still exists, not only as to such separate property, but also as to her separate property as defined by such statutes, except as to such contracts as she is authorized to make in her own name, upon which a remedy at law is given by said statutes.

5. The grounds upon which a court of equity charges a married woman's separate estate, for her general engagements, in the absence of a valid contract binding the same, or of an express charge thereon, is not because her contracts have any validity, nor by way of appointment, or charge, but because the circumstances are such that equity decrees it to be just that they should be paid out of such estate.

6. Something more than merely incurring the obligation, which the law would create if she were a single woman, is necessary to affect the estate of a married woman, and, in order to bind the separate estate by a general engagement, it should appear that it was made by her with reference to and upon the faith and credit of that estate, under such circumstances as makes it equitable that such charge should be enforced.

7. An answer of a married woman, made to an action by the indorser of a promissory note, to charge her separate estate, on her indorsement thereof, which denies that she intended to charge her separate estate, and avers that she indorsed the same through the influence and persuasion of her husband, and not of her own free will, and that she received no part of the money paid for said note, but the same was used for the sole benefit of her husband, states a good defense to such action.

8. The indorsement by a married woman of a promissory note, solely for the accommodation of her husband and as surety thereon, in order to enable him to dispose of the same, is, of itself, not sufficient to warrant a court of equity in presuming that she intended to charge her separate real estate with the payment of the same.

APPEAL. Reserved in the District Court of Hamilton county.

The plaintiff averred in his petition, among other facts:

First. That he is the holder of a note executed by one E. Earl, to the order of A. K. McMurrey; that said note is indorsed by A. K. McMurrey, by Frederick Straehle, and by Rosine Straehle.

Second. That said note was duly presented for payment; duly protested; notice duly given to said Rosine Straehle of its non-payment on the same evening.

Third. That the said Rosine Straehle is the wife of Frederick Straehle, a prior indorser, and also one of the defendants.

Fourth. That the said Rosine Straehle was then, and still is, the owner of a large estate of real property in her own right and as her separate property, worth about $12,000, which is described, and that she intended and did charge the same with the payment of said note in default of payment by the other defendants.

The prayer is for a personal judgment against Earl as maker, and Frederick Straehle, the husband, as an indorser. As against Rosine Straehle, the wife, the relief asked is that the amount be found due, and a decree be made; that the same be paid out of the separate estate of said Rosine, described in the petition, or out of such other property as she may be found to possess in her own name, and for such other and further relief as the nature of the case will require.

Frederick and Rosine Straehle were served with summons, but as to the defendant Earl, the summons was returned not found.

Frederick made no defense, and the printed record does not show what became of the action as to him, although it is stated in argument that judgment by default was taken against him.

Rosine answered separately as follows:

"Separate answer of Rosine Straehle, one of the defendants, by leave of court for Separate answer to the petition.

"She is the wife of Frederick Straehle, one of the defendants.

"She admits having written her name after that of her said husband upon the back of the note in the petition set forth, but denies that she intended to or did thereby charge her separate property in the petition set forth, or any other of her separate property, with the payment of said note in default of the payment by the other defendants, or that she is liable thereon as indorser. And this defendant avers that she wrote her name upon the back of said note through the influence and persuasion of said husband, Frederick Straehle, and not of her own free will and accord; that the money thereon was paid to her said husband, and by him used entirely for the payment of his own separate debts, and that no part thereof was used by this defendant, or for the benefit of her separate estate; wherefore, the defendant, Rosine Straehle, asks to be hence dismissed with her costs."

A demurrer to this answer was overruled, and exception noted. A reply was then filed, putting in issue the material averments of the answer. After a trial and judgment for said Rosine, the plaintiff appealed to the district court, where the case was reserved for decision in this court upon a special finding of the facts, as follows:

"1. That plaintiff is the holder and owner of the promissory note set forth in his petition, upon which there are no credits, and of which, with all indorsements, the following is a copy, to wit:

[First mortgage note for purchase-money. Mortgage properly stamped.]

[$1,000.] May 5, 1871.

One year after date I promise to pay to the order of A. K. McMurrey one thousand dollars, at Fourth National Bank, Cincinnati, value received, with eight per cent. interest.

(Signed,) E. EARL.

Indorsed: "My interest assigned without recourse.

"A. K. MCMURREY.

July 24, 1871.

"FREDERICK STRAEHLE, "ROSINE STRAEHLE."

"2. That said promissory note was made by E. Earl to the order of A. K. McMurrey, and was secured by mortgage of real estate; and prior to July, A. D. 1871, in consideration of lands of the defendant, Frederick Straehle, conveyed by him to A. K. McMurrey, was indorsed without recourse, and transferred by said McMurrey to said defendant.

"3. That in July, A. D. 1871, said Frederick Straehle, being thus the holder of said promissory note, indorsed said note and transferred the same to the plaintiff for value paid him by the plaintiff; and at the time, before transfer to the plaintiff or payment of value by him, and as the condition of such payment, the defendant, Rosine Straehle, wife of said Frederick Straehle, signed her name also upon the back of the note after the name of her said husband.

"4. That said promissory note was indorsed by Frederick Straehle, and the signature of Rosine Straehle made thereon, and said note transferred to the plaintiff at the city of Cincinnati, Ohio, where he and said Frederick Straehle and Rosine Straehle resided at the time, she living with her husband, and where said Rosine Straehle, as a business of her own, was keeping a beer-saloon, and also owned, under deed of conveyance to her in fee-simple, made September 8, 1869, by Adam Steinkoenig, certain real estate in said city, then of the value of twelve thousand dollars, and known as lots Nos. 139, 140, 141, and 142 of Burnet and Reeder's subdivision of lots in Mt. Auburn, Hamilton county, Ohio.

"5. That with the fact of such ownership of real estate by Rosine Straehle, the plaintiff had made himself acquainted before taking said promissory note, and upon the strength of her said ownership of real estate purchased said note, and without her signature thereon would not have done so; but the negotiation for the purchase was conducted by the plaintiff with Frederick Straehle, and the money upon said purchase was paid by the plaintiff to him without any part thereof going to Rosine Straehle or to benefit any property of hers, and without communication between her and the plaintiff about or concerning said note or signature, other than his words, 'that if she would sign, her husband could have the money.'

"6. That excepting the inducement last named, to indorse the note so that her husband might negotiate it and obtain the money, no influence was exerted over Rosine Straehle by her husband, in or about the indorsement of her signature, nor was any consideration received by her therefor.

"7. That said note is due and unpaid, nor has any payment whatever been made thereon; and that it was, on the day it became due (that is, the 8th day of ...