Stevenson v. Craig

• Decision Date: 05 April 1882
• Citation: 12 Neb. 464,12 N.W. 1
• Parties: STEVENSON v. CRAIG. SWEET v. CRAIG.
• Court: Nebraska Supreme Court

12 Neb. 464

12 N.W. 1

STEVENSON

v.CRAIG.

SWEET

v.CRAIG.

Supreme Court of Nebraska.

Filed April 5, 1882.

Appeal from Otoe county.

S. H. Calhoun, for appellant Stevenson.

Covell & Ransom, for appellant Sweet.

Watson & Wodehouse, for appellees.

COBB, J.

There are three principal questions presented by the record in this case: First, was the the defendant, Rowena S. Craig, and her sole and separate property therein described, bound by the mortgages to Rollin M. Rolfe and Oliver Stevenson? second, is the mortgage to Rollin M. Rolfe barred by the statute of limitations? and, third, is the mortgage to Oliver Stevenson barred by the statute of limitations?

It is conceded that the title to the mortgaged premises was and is in the said Rowena S. Craig, and although some evidence was introduced tending to prove that it was in reality the property of William R. Craig; that the lots were given to him as an inducement to leave his former place of residence in a neighboring state and move to Nebraska City and engage in manufacturing brick,--it is also alleged that he was then indebted to a considerable extent, and did not dare to hold real estate in his own name. If all of this is true, none of the parties to this action are in a position to take advantage of it. All of Craig's indebtedness to any or either of them has arisen long since the title to the lots was placed in Mrs. Craig, and was a matter of public record, besides being personally known to them. If the proprietors of the infant city, for the purpose of inducing her husband to take up his residence there and engage in manufacturing, saw fit to donate to Mrs. Craig lots for a family homestead, the receipt of such donation by her, and its retention and use by the family, was no fraud, and neither the then present nor future creditors of Craig have any right to complain.

In deciding the case of Demarest v. Wynkoop, 3 Johns, Ch. 129, Chancellor Kent, in 1817, said: “* * * There is no doubt that a wife may sell or mortgage her separate property for her husband's debts. Her deed under her separate examination before a competent officer is as valid with us as if she passed her estate by fine at common law. Nor do I perceive any objection to her competency to create a power in the mortgagee to sell in default of payment. If she can convey upon condition, she may prescribe the terms; and it is fit and convenient that the mortgagor should be able to confer the power.” This decision was made long before the legislation of that state conferring additional powers upon married women in reference to the management and disposal of their separate property, and was made upon the authority of common-law cases therein cited.

In the case of Fireman's Ins. Co. of Albany v. Bay, 4 Barb. 407, (1848,) the court say: “* * * And in all cases where the wife has a separate estate, no matter how it was created, it may be made liable to the payment of her note or bond given on the credit of it, and she has in equity the same power over it, and may sell it or bind it by the mortgage, as if she were a feme sole.”

In the case of Robbins v. Abrams, 1 Halst. Ch. 465, decided in 1846, the court of errors and appeals of New Jersey held as follows: “A husband bought real estate and directed that the deeds therefor be made to another, in trust for his wife and her heirs. * * * The trustee and the wife afterwards executed a mortgage of the lands to secure a debt due from the husband, and the mortgage was duly acknowledged by the wife. Held, that the mortgage was good,” and this upon the general principle of the common law.

In the case of Smith v. Osborn, 33 Mich. 410,Cooley, C. J., delivering the opinion of the court, says: “The consideration of the mortgage which is in controversy in this suit was the purchase price of certain goods bought by Martin C. Osborn of complainant, and also an old indebtedness of a few hundred dollars owing by him to complainant. The mortgage is upon property owned by Emeline C. Osborn, who is the wife of the other defendant, and was given by her at her husband's request. She defends the foreclosure,...