Sandwich Manuf'g Co. v. Zellmer

• Decision Date: 10 February 1892
• Citation: 48 Minn. 408,51 N.W. 379
• Parties: SANDWICH MANUF'G CO. v ZELLMER ET AL.
• Court: Minnesota Supreme Court

48 Minn. 408

51 N.W. 379

SANDWICH MANUF'G CO.vZELLMER ET AL.

Supreme Court of Minnesota.

Feb. 10, 1892.

(Syllabus by the Court.)

1. Under the provisions of the act of 1869 (Gen. St. 1878, c. 69) in respect to the rights and contracts of married women, a married woman who unites with her husband in a conveyance of real estate with covenants, and expressly joins in and becomes a party to such covenants, is estopped thereby as if unmarried.

2. The act was intended to invest a married woman with all the rights of a feme sole, as respects her contracts, save only as expressly excepted or reserved by its terms; and, among the contracts which she may make, she may obligate herself by a joint promise with him to pay or secure his debts.

3. And though it is not necessary for her to join in the covenants of his deed, in order to bar her statutory homestead or dower interest, yet she is under no disability to obligate herself thereby, if she chooses so to do, and it is so expressed on the face of the deed.

4. Where an incumbrance is excepted generally from the operation of a deed, all the covenants therein are restricted by the exception. But a restricted covenant does not affect the operation of a succeeding covenant, not connected or of the same import with it.

5. A covenant of warranty is not restricted by an exception in a preceding covenant against incumbrances.

Appeal from district court, Rock county; PERKINS, Judge.

Action by the Sandwich Manufacturing Company against Julius Zellmer, Fredericke Zellmer, his wife, and Herman Zellmer, to foreclose a mortgage. Judgment for defendants. Plaintiff appeals. Reversed.

E. H. Canfield, for appellant.

W. N. Davidson and P. E. Brown, for respondents.

VANDERBURGH, J.

On the 11th day of September, 1882, the defendants Julius Zellmer, and Fredericke Zellmer, his wife, executed and delivered to the plaintiff the three several notes or contracts in writing described in the complaint, whereby they agreed to pay the plaintiff, in the aggregate, the sum of $488.29. They were given in consideration of, and to secure, the individual indebtedness to plaintiff of Julius Zellmer to that amount. They also, at the same time, duly executed the mortgage deed set up in the complaint, which instrument contained a covenant against prior incumbrances “except a mortgage of $700,” and also a covenant for quiet enjoyment and possession, and “that the parties of the first part, Julius and Fredericke Zellmer, his wife, would warrant and defend the title to the said premises against all lawful claims.” At the time of the execution of the mortgage, which conveyed the N. E. 1/4 of section 6, in township 101, range 45, including the homestead of the mortgagors, the defendant Julius was insolvent. The title to the land stood in his name, and the mortgage was given to secure his indebtedness above mentioned. There was a prior mortgage upon the premises, running to one Henry Zaun, for about $700, which is the incumbrance referred to in the mortgage to plaintiff. The last-named mortgage was foreclosed in 1885. The title passed under the foreclosure, and afterwards the owner conveyed the same by deed to the defendant Fredericke Zellmer, subsequently recorded; and thereafter, in the year 1887, she, by deed of conveyance, in which her husband duly joined, conveyed the same premises to Herman Zellmer.

The question here presented is whether the defendant Fredericke, who expressly joined in the covenants in the mortgage to plaintiff, is bound thereby; for if she is liable thereon, or is estopped thereby, as if she had not been under coverture, the conveyance to her inured to the benefit of the plaintiff by virtue of her covenant, and its mortgage is operative as a valid subsisting lien upon the land, as against her and her assignee, Henry Zellmer. It is hardly necessary to refer to the nature of a married woman's disability at the common law. She was not bound by her contracts or covenants, and was not estopped thereby from setting up an after-acquired title. It was competent for the legislature to emancipate her from such disability, and enable her to obligate herself as if unmarried. The question here involved turns upon the construction of the statute of this state touching the rights and liabilities of married women. Prior to the act of 1869 the statute had secured to them their separate estate, real and personal, with the rents, profits, and income thereof. But she could not dispose thereof without the consent of her husband; and her general, common-law disability to make contracts remained. St. 1849-1858, p. 571; Revision 1866, p. 499; Id. p. 328, § 2; Carpenter v. Leonard, 5 Minn. 163, (Gil. 119;)Tullis v. Fridley, 9 Minn. 81, (Gil. 68.) But the provisions of the Laws of 1869 (chapters 56, 57) were radical and sweeping, and were intended, in respect to her contracts, to invest a married woman not merely with the right to contract in respect to her separate property, but with all the rights and liabilities of a feme sole, save only as expressly excepted or reserved by the same statute. It was evidently the intention of the legislature to define clearly the nature and extent of such rights and liabilities. Kingsley v. Gilman, 15 Minn. 61, (Gil. 40;) Insurance Co. v. Allis, 23 Minn. 337. This statute does not, of course, have any reference to the domestic relations, or affect the rules of evidence, or the duty of the husband to provide for his family, though the wife might obligate herself for such purpose. Flynn v. Messenger, 28 Minn. 209, 9 N. W. Rep. 759. In Insurance Co. v. Allis, supra, the wife had mortgaged her separate real property to secure a debt of her husband, which was evidenced by their joint note. The mortgage was not only held valid, but she was held personally liable for the deficiency upon foreclosure by action. It was contended that she was not liable because of the provisions of section 3, which exempted her from the debts of her husband; but the court say, (page 341:) “To give this effect to the section would be to allow inference and conjecture to qualify and restrict the meaning of the clear and precise language of the act removing the wife's common-law disability to contract. Section 2 provides that ‘any married woman shall be capable of making any contract, either by parol or under seal, which she might make if unmarried, and shall be bound thereby.’ Then follow clearly expressed exceptions to her power to contract without her husband, relating only to her real estate. Section 4 expressly retains the common-law disabilities of husband and wife to contract with each other relative to the real estate of either. *** ‘But in relation to all other subjects either may be constituted the agent of the other, or contract each with the other, as fully as if the relation of husband and wife did not exist.”’ No doubt the defendant in that case would have been bound upon her covenants in the mortgage as well as her husband, and a covenant of warranty would have passed an after-acquired title. Knight v. Thayer, 125 Mass. 27; Bigelow, Estop. (5th Ed.) 406, 407; Kenworthy v. Sawyer, 125 Mass. 28; Goodnow v. Hill, Id. 587.

In the case at bar the defendant Fredericke, as to the payee, the plaintiff, made the debt her own by signing the note. She joined in the mortgage of the quarter section, containing the homestead, to secure this debt. She also joined in the covenants therein, including the covenant of warranty. It is contended, however, that she is not bound by the covenants in the mortgage, because she must be presumed to have joined in the mortgage solely for the purpose of releasing the homestead or dower interest in the land; and it is claimed that the authorities in other states, particularly Illinois, support this contention. But no consistent general rule can well be formulated under the varying statutes of the different states on the subject, in connection with local statutes regulating...