McFarland v. Johnson

Citation127 P. 911,22 Idaho 694
PartiesR. E. McFARLAND, Appellant, v. SARAH S. JOHNSON, Respondent
Decision Date19 November 1912
CourtUnited States State Supreme Court of Idaho

PROMISSORY NOTE-LIABILITY OF MARRIED WOMAN-CONTROL OF SEPARATE PROPERTY AND LIABILITY FOR DEBT.

(Syllabus by the court.)

1. Where an action is brought by R. E. McFarland to recover upon a promissory note executed by Sarah S. Johnson to John Adolph Johnson, and in the complaint it is alleged to have been sold and transferred to McFarland, and there is no allegation in the complaint that Sarah S. Johnson, the maker of the note and John Adolph Johnson, the payee, were husband and wife, the court cannot presume that Sarah S Johnson was the wife of John Adolph Johnson, and was incompetent to make such contract.

2. Where an action is brought by the assignee of the payee upon a promissory note, executed by Sarah S. Johnson to John Adolph Johnson, and the evidence shows that at the time of the execution of said note Sarah S. Johnson and John Adolph Johnson were husband and wife, but such evidence does not show that such debt was contracted for the wife's own use and benefit and for the use and benefit of her separate estate, it is not error to grant a motion for a nonsuit upon the ground that such note was not executed and the obligation thereof incurred for her own use and benefit or for the use and benefit of her separate property.

3. Under the statutes of this state a married woman is given the absolute control of her separate property and estate, and has the power and right to contract with reference to such separate property and estate, and she may create a debt against herself personally when such debt is created for her own use or benefit and for the use and benefit of her separate estate.

4. The evidence examined and held to support a finding made by the trial court on motion for a nonsuit.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. M. Dunn, Judge.

Action upon a promissory note. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Whitla & Nelson, for Appellant.

From the fact that the note was given by the wife to the husband under the presumption of the law, it is presumed to be originally the wife's debt and a contract with reference to her separate property and estate, and comes exactly within the rule explicitly announced in the case of Bank of Commerce v. Baldwin, 12 Idaho 202, 210, 85 P. 497.

Lynn W. Culp, for Respondent.

It must be alleged in the complaint and proven that the debt was incurred for the use and benefit of her separate property, or was contracted by her for her own use and benefit. (Dernham 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 of Commerce v. Baldwin, 12 Idaho 211, 85 P. 497.)

It could scarcely be contended that where the wife appears in the note as maker and the husband as payee, such presumption would arise as to its being her separate and individual debt as would obviate the necessity of alleging the fact and submitting proof thereof, and so put the defendant wife on her proof.

STEWART, C. J. Sullivan, J., concurs.

OPINION

STEWART, C. J.

This action was instituted by the appellant against the respondent in the district court of Kootenai county to recover upon a promissory note executed by Sarah S. Johnson, payable to John Adolph Johnson on March 17, 1908, for the sum of $ 4,000. It is alleged in the complaint that this promissory note was sold, transferred and assigned to the plaintiff prior to the commencement of this action, for valuable consideration. The answer filed by the defendant denies the execution of such promissory note and also denies the sale and transfer to appellant.

Upon the trial of the issues presented by the pleadings in the district court a jury was selected to try the issues of fact, and after the plaintiff had introduced his evidence in said cause counsel for respondent presented a motion for a nonsuit upon two grounds: First, the evidence introduced by plaintiff shows that the payee in the alleged note sued upon and the alleged maker thereof, the defendant herein, were at the time the said alleged note is alleged to have been executed husband and wife of each other respectively, while it is not alleged, and plaintiff has not offered to prove or offered any proof to show that said note was executed and the obligation thereof incurred for the use and benefit of her separate property or contracted by her for her own use and benefit. Second, no evidence has been introduced by the plaintiff showing that he was at the time of the beginning of this action, or at any other time, the owner and holder of said note, or that he held the said note in his personal capacity, or that he has or had any proprietary ownership therein such as would give him the right to maintain an action in his own behalf for the recovery thereof.

This motion for a nonsuit was sustained by the trial court, and a judgment was entered sustaining said motion and dismissing said action. Thereafter a motion for a new trial was interposed and overruled, and this appeal is from the judgment and from the order overruling the motion for a new trial.

In the order granting a nonsuit the court finds: "That the evidence introduced by the plaintiff shows that the payee in the note sued upon and the maker of said note, the defendant herein, at the time of the execution of said note were husband and wife of each other, while it is not alleged in the complaint, and the evidence offered by plaintiff does not show, that said note was executed and the obligation thereof incurred for the use and benefit of her separate property or was contracted by her for her own use and benefit." The finding of the trial court in sustaining the motion supports the foregoing finding, and there is no conflict in the evidence as to the facts found above.

It will also be observed from the record that the order sustaining said motion does not indicate whether the motion was sustained upon the issue whether the respondent executed the note in question, or whether such note was assigned and transferred to the appellant, or the sufficiency of consideration. The court apparently relied upon the fact as found in finding No. 1. By this finding it appears that the defendant and the payee of the note sued upon were husband and wife at the time of the execution of the note, and because of this relationship the respondent's counsel urge that it must be alleged in the complaint and proven that the debt was incurred for the use and benefit of the wife's separate property or was contracted by her for her own use and benefit, and the trial court evidently concluded from the evidence that the note sued upon was not shown to have been executed in payment of a debt incurred for the use and benefit of her separate property, and that the debt was not contracted by her for her own use and benefit. This principle of law was announced by this court in the case of Jaeckel v. Pease, 6 Idaho 131, 53 P. 399, wherein this court said: "It was error to return a personal judgment against the wife for his community debt."

In the case of Strode v. Miller, 7 Idaho 16, 59 P. 893, this court said: "There are no allegations in the complaint that the mortgaged property, or any of it, is the separate estate of Mrs. Miller, or that said debts were created for the benefit of her separate estate. The presumption, therefore, is that said debts are debts of the husband, and that said property is community property."

In the case of Holt v. Gridley, 7 Idaho 416, 63 P. 188 this court said: "It also appears that the defendants are husband and wife, and there is nothing in the record to show that her separate property is liable for the indebtedness sued on herein. Where it is sought to make the separate property of a married woman liable for debt, it must be alleged and...

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12 cases
  • Meier & Frank Co. v. Bruce
    • United States
    • Idaho Supreme Court
    • October 2, 1917
    ... ... can be had against a married woman without such an allegation ... and proof thereof. ( McFarland v. Johnson, 22 Idaho ... 694, 127 P. 911; Bank of Commerce v. Baldwin, 12 ... Idaho 202, 85 P. 497, 14 Idaho 75, 93 P. 504, 17 L. R. A., N ... ...
  • Pierson v. Pierson
    • United States
    • Idaho Supreme Court
    • July 17, 1941
    ... ... Idaho 16; Holt v. Gridley, 7 Idaho 416; Bank of ... Commerce v. Baldwin, 12 Idaho 202; Roberts v ... Hudson, 49 Idaho 132; McFarland v. Johnson, 22 ... Idaho 694; Larson v. Carter, 14 Idaho 511; Bank ... of Orofino v. Wellman, 26 Idaho 425.) ... Husband ... and wife's ... ...
  • Ness v. Coffer
    • United States
    • Idaho Supreme Court
    • October 13, 1925
    ...of her separate estate. Without such an allegation plaintiff cannot recover. (Holt v. Gridley, 7 Idaho 416, 63 P. 188; McFarland v. Johnson, 22 Idaho 694, 127 P. 911; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 497; 14 Idaho 75, 93 P. 504, 17 L. R. A., N. S., 676; Strode v. Miller, 7 Idah......
  • Overland National Bank of Boise v. Halveston
    • United States
    • Idaho Supreme Court
    • February 28, 1921
    ... ... reversed in part ... Judgment affirmed in part, and reversed and remanded in part ... Richard ... H. Johnson, for Appellant ... All of ... the notes were given by defendant, a married woman, for ... obligations which were in no sense her ... (Bank of Commerce v ... Baldwin, 12 Idaho 202, 85 P. 497, and 14 Idaho 75, 93 P ... 504, 17 L. R. A., N. S., 676; McFarland v. Johnson, ... 22 Idaho 694, 127 P. 911; Hall v. Johns, 17 Idaho ... 224, 105 P. 71; Meier & Frank Co. v. Bruce, 30 Idaho ... 732, 168 P. 5.) ... ...
  • Request a trial to view additional results

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