Main v. Scholl

• Citation: 54 P. 1125,20 Wash. 201
• Parties: MAIN ET AL. v. SCHOLL ET AL.
• Decision Date: 22 November 1898
• Court: United States State Supreme Court of Washington

54 P. 1125

20 Wash. 201

MAIN ET AL. v. SCHOLL ET AL.

Supreme Court of Washington

November 22, 1898

Appeal from superior court, Pierce county; W. H. H. Kean, Judge.

Action by E. Main and C. H. Winchester, partners under the firm name of Main & Winchester, against John D. Scholl and others, to subject certain property to the lien of a judgment. From a judgment for defendants, and an order denying plaintiffs' petition to reopen the case and the denial of a motion for new trial, plaintiffs appeal. Affirmed.

Anders and Dunbar, JJ., dissenting.

Frank D. Nash, for appellants.

Campbell & Powell, for respondent William Virges. G. W. H. Davis, for other respondents.

SCOTT C.J.

Appellants concede that the principal question in this case is as to whether property purchased by a married woman having no separate estate, with borrowed money, is, under the law of this state, her separate property or that of the community. The property in controversy was a number of shares of stock in the Puget Sound Brewing Company, which were exposed for sale under an execution issued upon a judgment against the husband on a separate liability, and were bid in by the wife, she at the time obtaining the money to pay therefor by hiring it from a bank, and pledging the property purchased as security for its payment. Section 1398 Hill's Code, provides that the property and pecuniary rights owned by a woman at the time of her marriage, or afterwards acquired, by gift, devise, or inheritance, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of her husband, etc. There was some attempt in this case to show that the wife had a prior separate estate, and there are other questions presented upon this appeal relating thereto, but, under the view of the first question taken by the court, it will not be necessary to consider them. Sections 1408, 1409, and 1410 are as follows:

"Sec 1408. Every married person shall hereafter have the same right and liberty to acquire, hold, enjoy, and dispose of every species of property, and to sue and be sued as if he or she were unmarried.

"Sec. 1409. All laws which impose or recognize civil disabilities upon a wife, which are not imposed or recognized as existing as to the husband, are hereby abolished, and for any unjust usurpation of her natural or property rights she shall have the same right to appeal in her own individual name to the courts of law or equity for redress and protection that the husband has: provided, always, that nothing in this chapter shall be construed to confer upon the wife any right to vote or hold office, except as otherwise provided by law.

"Sec. 1410. Contracts may be made by a wife, and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were unmarried."

The several sections relating to the rights of married women are somewhat conflicting, and in construing them the scope of some is necessarily enlarged and of others restricted. We are of the opinion that, while the property in question was not acquired strictly within the terms of section 1398, she not having owned it at the time of her marriage, and it not having been acquired by gift, devise, or inheritance, or...