Sassaman v. Root

• Citation: 37 Idaho 588,218 P. 374
• Parties: C. R. SASSAMAN, FRANCIS THREEHOUSE, CHAS. DICKINSON and CHAS. BALDWIN, Respondents, v. MALDA R. ROOT and SAMUEL H. ROOT, Appellants
• Decision Date: 02 August 1923
• Court: United States State Supreme Court of Idaho

218 P. 374

37 Idaho 588

C. R. SASSAMAN, FRANCIS THREEHOUSE, CHAS. DICKINSON and CHAS. BALDWIN, Respondents, v. MALDA R. ROOT and SAMUEL H. ROOT, Appellants

Supreme Court of Idaho

August 2, 1923

CHATTEL MORTGAGE-GIVEN AS INDEMNITY-WHEN SURETY MAY FORECLOSE WITHOUT PAYMENT OF PRINCIPAL DEBT-ATTORNEY'S FEES-WHEN ALLOWED-RIGHT OF MARRIED WOMAN TO CARRY ON BUSINESS IN ABSENCE OF HUSBAND.

1. After the maturity of the principal debt, a surety who has taken the mortgage on personal property as indemnity against loss may go into a court of equity to compel payment of the principal debt, although he has not paid such debt or any part of it, where the mortgaged property which has been mortgaged to indemnify him is being dissipated, sold or disposed of, and the principal debtor is insolvent.

2. In an action to foreclose a chattel mortgage securing an indebtedness evidenced by a note which provides that the maker will pay a reasonable sum in addition to the costs and disbursements in case suit is instituted, and the mortgage contains a clause providing that in addition to costs, the court may allow counsel fees in such sum as the court may adjudge reasonable, such provision is sufficient to support an allowance for attorneys' fees in a decree foreclosing such mortgage, since the giving of the note and mortgage is a part of the same transaction.

3. Where a husband conveys to his wife all of his interest in the community property and leaves home for several years returning occasionally, and remains with his family only for short intervals, and during his absence makes occasional remittances from his earnings while engaged in various pursuits in widely separated localities, such remittances being insufficient to support his family, and during such absence his wife, to support herself and children, engages in extensive farming operations, obtains credit and executes notes secured by mortgages on her personal property, such obligations cannot be avoided because she is a married woman.

4. Where a husband absents himself from his family during a period of several years, being most of the time beyond the territorial limits of the state and a part of the time beyond the United States, but who is constantly informed of his wife's business transactions, neither he nor his wife will be permitted to deny the validity of her obligations as against herself and property upon his return, because of her being a married woman at the time she contracted the indebtedness.

5. Where a married woman establishes and carries on a business with her own funds and allowances received by her from her husband, who is almost continuously absent, and through such transactions acquires personal property, and mortgages the same, and by the acts and declarations of both herself and her husband such property is treated as her separate property, neither of them will thereafter be heard to say as against her creditors that it is community property, which she cannot convey without the permission of her husband.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action to foreclose a chattel mortgage. From judgment for plaintiffs, defendants appeal. Affirmed.

Judgment affirmed, with costs to respondents. Petition for rehearing denied.

Eugene O'Neill, for Appellants.

Property acquired by money borrowed during coverture is presumed to be community property. (Northwestern & P. Hypotheek Bank v Rauch, 7 Idaho 152, 61 P. 516; Chaney v. The Gauld Co., 28 Idaho 76, 152 P. 468; Yesler v Hochstettler, 4 Wash. 349, 30 P. 398; Katterhagen v. Meister, 75 Wash. 112, 134 P. 673.)

Where property is claimed as separate property acquired during coverture the fact must be established by the party claiming it to be separate property by clear and convincing evidence.

In the absence of such proof the presumption as to the community character of the property is absolute and conclusive. (In re Boody, 113 Cal. 682, 45 P. 858; Myer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 538; Morgan v. Lones, 78 Cal. 58, 20 P. 248; Dimmick v. Dimmick, 95 Cal. 323, 30 P. 547; Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66.)

The purchase of property in the wife's name, or by a married woman, she being engaged in a business out of the ordinary course of women's business, is sufficient to put third persons on inquiry as to the nature of the married woman's title, and they must, if they would avoid peril, comply with the statutes. (Ramsdells v. Fuller, 28 Cal. 37, 87 Am. Dec. 103; Jackson v. Torrence, 83 Cal. 521, 23 P. 695; Ballinger on Community Property, sec. 40; Pixley v. Huggins, 15 Cal. 127.)

The husband has the absolute management and control of the community property from the time of acquisition until dissolution by death or by division, by decree in divorce, and the wife cannot by her contracts bind the community property. (Hall v. Johns, 17 Idaho 224, 105 P. 71; Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544; Dernham & Kaufmann v. Rowley, 4 Idaho 753, 44 P. 643; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497; Meier & Frank Co. v. Bruce, 30 Idaho 732, 168 P. 5; McFarland v. Johnson, 22 Idaho 694, 127 P. 911.)

Constant residing together is not required to maintain the marital relation or to preserve marital rights. It is a question of intent and abandonment of the community interests and intentional estrangement. (Estate of McVay, 14 Idaho 56, 93 P. 28; Eproson v. Wheat, 53 Cal. 715; Jacobson v. Bunker Hill & Sullivan Min. & Con. Co., 3 Idaho 126, 28 P. 396.)

Fred E. Butler and F. H. Rehberg, for Respondents.

After maturity of the debt the surety has the right before payment to go into a court of equity and compel payment of the debt by the principal, or to be secured against loss. (32 Cyc. 249; Slaterly v. Gross, 96 Ore. 554, 187 P. 300, 190 P. 577; 21 R. C. L. 410.)

"At law the surety must pay the debt before he can have an action, but not so in equity." (Davis v. First Nat. Bank of Albany, 86 Ore. 474, 161 P. 93, 168 P. 929.)

Where the husband has thrown upon his wife the burden of maintaining herself or family, she has power to dispose of community, real or personal property. (Forbes v. More, 32 Tex. 195; Slater v. Neal, 64 Tex. 222; Gregory v. Paul, 15 Mass. 52; Cheek v. Bellows, 17 Tex. 613, 67 Am. Dec. 686; Fullerton v. Doyle, 18 Tex. 13; Heidenheimer v. Thomas, 5 Tex. Law Review, 205; Diefendorff v. Hopkins, 95 Cal. 343, 28 P. 265.)

"An owner of property who stands by and sees a third person sell or mortgage it under claim of title and without asserting his own title or giving the mortgage any notice thereof, is estopped as against said mortgagee from afterwards asserting his title." (21 C. J. 1154.)

"The law requires consistent conduct and where inconsistency would work injury to a third party the other is estopped." (21 C. J. 1204, 1205.)

WILLIAM A. LEE, J. McCarthy, Dunn and William E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is an action to foreclose a chattel mortgage executed by appellant Malda R. Root, which was given to respondents to secure a note for $ 3,000, bearing interest at ten per cent, payable one year from date thereof.

The amended complaint alleges that Malda R. Root executed to the State Bank of Kamiah on December 15, 1919, a note for $ 3,000, payable on demand, and that this note given to respondents was in consideration of their being sureties for the payment of the note given to the bank. Both notes and the mortgage are pleaded haec verba in the complaint. Respondents do not allege that they have paid the note upon which they became sureties, but allege that said Malda R. Root had been engaged in extensive farming operations in Lewis county, Idaho, and had embarked upon the venture with her own funds, money obtained from her own labor, income from her separate property and the money secured from the bank, all of which was used by her in the conduct of such farming operations, to enable her to support herself and children, protect her separate property, and for her own use and benefit; that appellant Samuel H. Root, her husband, had lived separate and apart from her during most of the time from January, 1913, until 1920; that he had full knowledge that his wife was carrying on these farming operations in her own name and as her separate business, and that she was buying, selling, acquiring and otherwise disposing of property in the ordinary course of business, and that he consented thereto; that all of said property covered by the chattel mortgage was acquired by Malda R. Root during the time he was absent from the ranch and while she was carrying on her separate business. As one of the grounds for bringing this foreclosure action, it is alleged that she had permitted a large amount of the machinery included in the mortgage to be secreted and hidden, had sold a large part of the grain covered by the mortgage, and had otherwise violated its conditions, and that she was insolvent, and the foreclosure of this mortgage was necessary to prevent them from suffering irreparable injury. Appellant Samuel H. Root is made a party defendant because of his claiming some interest in the mortgaged property, no other relief being asked for against him.

The answer to the amended complaint denies the execution of the note to the bank or that respondents guaranteed its payment, or that appellant Malda R. Root executed the note or chattel mortgage to respondents, and denies specifically other material allegations.

During the trial of the cause the parties stipulated that the issues to be determined should be: (1) was the promissory note and chattel mortgage alleged to have been given to respondents executed and...