Phipps v. Kelly

• Decision Date: 20 April 1885
• Citation: 6 P. 707,12 Or. 213
• Parties: PHIPPS v. KELLY.
• Court: Oregon Supreme Court

6 P. 707

12 Or. 213

PHIPPS v. KELLY.

Supreme Court of Oregon

April 20, 1885

Appeal from Douglas county.

C. Ball, for appellants.

W.R. Willis, for respondents.

LORD, J.

The defendants were husband and wife. The plaintiff, who is the assignee of Marks & Co., bases his right to relief upon the grounds (1) that the indebtedness, consisting of a promissory note, book-account, and goods, wares, and merchandise, which were sold and delivered as future advances, was by agreement of the parties secured by a deed intended to operate as a mortgage, and executed by the defendants upon the separate property of the wife; (2) that the whole amount of such indebtedness was made and incurred for expenses of the family in the purchase of goods, wares, and merchandise by the defendants as husband and wife, and that the same were received and used in their family, consisting of the defendants and their children. The wife denied that the deed was executed as a payment of the whole of such indebtedness but alleged that it was executed and given only as a security for the payment of the note, and no more; but she did not deny the correctness of the claims or amounts, nor that the goods, wares, and merchandise were purchased for and used by the family, or that they were the expenses of the family. After a trial upon the merits, the court found that the deed was executed and intended to operate only as a security for the payment of the note, but that the balance of the indebtedness was contracted for family expenses, in the purchase of goods and merchandise, which were received and used in the family of the defendants, and was properly chargeable upon the property of the wife, and made a decree accordingly. It is to test the correctness of the decree in this regard that the wife has brought this appeal.

Section 10 of the act of 1878 provides "that the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately." Sess.Laws 1878, p. 94. The general effect of this act was, undoubtedly, to extend and enlarge the rights and liabilities of married women much beyond previous limitations. The disability to make contracts and incur liabilities, which formerly existed at law, it removed, and now a married woman may do either, and her contracts and liabilities may be enforced by or against her to the same extent and in the same manner as if she were unmarried. For liabilities incurred as a family expense she may be sued at law jointly with her husband, or separately and a personal judgment may be rendered against her. This was expressly recognized by this court in Watkins v. Mason, 4 PAC.REP. 524; and see, also, Polly v. Walker, 60 Iowa, 88; S.C. 14 N.W. 137; Jones v. Glass, 48 Iowa, 345. There is, then, under the statute, a remedy at law which may be enforced against her for an indebtedness incurred as a family expense, for which her property may become liable.

It is insisted by counsel for the appellant that there is a complete remedy at law for the matter upon which that portion of the decree appealed from is based, and that as to it the decree ought to be reversed, and the complaint dismissed. His contention is to the effect that this objection is jurisdictional, and ought to be enforced by the court sua sponte. This is the rule in the United States courts when the objection is well taken, though it is not raised by the pleadings, nor suggested by counsel. Oelrichs v Spain, 15 Wall. 228. Our Code provides that "the enforcement or protection of a private right, or the prevention of or redress for an injury thereto, shall be obtained by a suit in equity, in all cases where there is not a plain, adequate, and complete remedy at law;" but this, probably, is merely declaratory of the pre-existing rule. Oelrichs v. Spain, supra. When the right is of such a character that a court of law is authorized to take cognizance, and is competent to render a judgment which affords a plain, adequate, and complete remedy, the general principle undoubtedly is that the plaintiff must enforce his right at law. In such case, the right being purely legal, and disentangled of any equitable feature, and the remedy at law being adequate and efficient to secure the ends of justice and its prompt administration, there is no ground for equitable interference, and its jurisdiction should be rejected. A strictly legal right, unaffected by any equitable incident, for which there is a legal remedy adequate and speedy for its enforcement or protection, is not properly a subject-matter within the legitimate province of equity, and of which equity could take cognizance without depriving the defendant of his constitutional rights to a trial by jury. This is a highly valued right, to which the people are attached, for the legal settlement of disputed questions of fact, and which they have secured by constitutional guaranty, to the end that no one should be deprived of it except for some proper or specified cause. As relevant to the particular subject, HUNT, J., said:

"The right to a trial by a jury is a great constitutional right, and it is only in exceptional cases, and for specified causes, that a party may be deprived of it.

It is in vindication of this great principle, and as declaratory of the common law, that the judiciary act of 1789, in its sixteenth section, declares "that suits in equity shall not be sustained in either of the courts of the United States in any case where adequate and complete remedy may be had at law.' " Grand Chute v. Winegar, 15 Wall. 375; Insurance Co. v. Bailey, 13 Wall. 616; Hipp v. Babin, 19 How. (U.S.) 271-278; Parker v. Winnipiseogee Lake, etc., Co. 2 Black. 550, 551.

As a result of this doctrine, stated in its broadest terms, the general principle deducible from the authorities and text-writers, with perhaps some qualification or limitation, is that where the right or interest to be protected is of a purely legal character, and a court of law can, by its mode of procedure and judgment, do complete justice to the matter in controversy as a court of equity, the remedy is at law, and the jurisdiction of equity will be rejected. "When," says Mr. Pomeroy, "the primary right of the plaintiff is purely legal, arising either from the non-performance of a contract or from a tort, and the money is sought to be recovered as a debt or damages, and the right of action is not dependent upon or connected with any equitable feature or incident, such as from mistake, accident, trust, accounting, contribution, and the like, full and certain remedies are afforded by action at law, and equity has no jurisdiction. These are cases especially within the sole cognizance of law. Pom.Eq.Jur. § 178, and note. The relief sought in such cases is in no sense equitable, and the jurisdiction in equity should be rejected by the court itself as without domain. Howard v. Jones, 5 Ired.Eq. 75; Echols v. Hammond, 30 Miss. 177; Stewart v. Mumford, 80 Ill. 192; Bennett v. Nichols, 12 Mich. 24; Coquillard v. Suydam, 8 Blackf. 25. A court of equity cannot create a lien on real estate to secure a personal debt not contracted on its credit, and not charged upon it by agreement, ( Bennett v. Nichols, supra;) nor is the remedy in equity, but at law, for a debt for goods sold and delivered. Coquillard v. Suydam, supra.

Under section 10 the property of the husband, like the wife, is chargeable for family expenses; but it is apprehended that on liabilities incurred by him for family expenses, in the purchase of goods and wardrobe used in the family, the remedy is exclusively at law, unless the transaction is in some way equitably connected. But now he, or she, or both of them, may be sued at law, and the...