Stevenson v. Craig

• Decision Date: 05 April 1882
• Citation: 12 N.W. 1,12 Neb. 464
• Parties: OLIVER STEVENSON, PLAINTIFF AND APPELLEE, v. WILLIAM R. CRAIG ET AL., DEFENDANTS AND APPELLANTS, AND JAMES SWEET, PLAINTIFF AND APPELLANT, v. WILLIAM R. CRAIG ET AL., DEFENDANTS AND APPELLEES
• Court: Nebraska Supreme Court

12 N.W. 1

12 Neb. 464

OLIVER STEVENSON, PLAINTIFF AND APPELLEE, v. WILLIAM R. CRAIG ET AL., DEFENDANTS AND APPELLANTS, AND JAMES SWEET, PLAINTIFF AND APPELLANT, v. WILLIAM R. CRAIG ET AL., DEFENDANTS AND APPELLEES

Supreme Court of Nebraska

April 5, 1882

OLIVER STEVENSON brought an action in the district court of Otoe county, on the 24th of June, 1880, to foreclose a mortgage executed May 23, 1870, and due six months thereafter, by William R. Craig, and Rowena S. Craig, his wife, to said Stevenson, to secure a note of William R. Craig of that date. The title to the property covered by the mortgage was in the wife, and the same was claimed by her as her separate property. James Sweet was made a defendant, and filed an answer therein, as well as a petition and cross bill against Stevenson, the Craigs, and other defendants, setting up the execution of a prior mortgage on the same property, by the said Craigs, to secure a note of William R. Craig, dated Sept. 15, 1868; setting up also payments on said note at different times, and an acknowledgment by W. R. Craig of the amount due on the note, April 1, 1876, claiming that the said mortgage was the prior lien on said premises; and asking for a foreclosure thereof, etc. Both transactions were consummated before the taking effect of the act of 1871 relative to the rights of married women in Nebraska. By order of court the two actions were consolidated, and upon a trial thereof before POUND, J., the court found in favor of said Stevenson on his note and mortgage, against Sweet on his note and mortgage, that same was barred by statute of limitation etc., and decree accordingly. Sweet and the Craigs appeal.

AFFIRMED.

Covell & Ransom, for appellant Sweet.

As to validity of mortgage by wife prior to act of 1871, see sec 47, R. S., chap. 43. As to defense of suretyship, cited Dickinson v. Codwise, 1 Sand. Ch., 214. Gahn v. Niemcewicz, 11 Wend. 312. Niemcewicz v. Gahn, 3 Paige Ch. 614. As to statute of limitations, contended that the mortgage having been given prior to amendment of statute in 1869, action thereon could have been brought at any time within twenty-one years. R. S., sec. 6, code. Wilson v. Richards, 1 Neb. 342. But even if the ten years statute applied, the acknowledgment of Craig of the amount due April 1, 1876, would prevent statute from running. Furthermore, as to statute of limitations, cited inter alia, Schmucker v. Sibert, 18 Kan. 104. 2 Jones on Mortgages, sec. 1211. Sichel v. Carillo, 42 Cal. 493. Joy v. Adams, 26 Me. 333. Thayer v. Mann, 19 Pick. 535.

Watson & Wodehouse, for appellants Craigs.

Sec. 47, chap. 43, R. S., did not give Mrs. Craig power to make contract of suretyship. Baylies on Sureties, 42. Brandt on Suretyship, sec. 4. Perkins v. Elliot, 23 N.J.Eq. 526. The mortgage to Stevenson is barred. Schmucker v. Sibert, 18 Kan. 176. Fort Scott v. Schulenberg, 22 Id., 648. And see also Hubbard v. Ogden, 22 Kan. 363.

S. H. Calhoun, for appellee Stevenson.

As to power of wife to mortgage separate estate to secure husband's debt. 1 Jones on Mortgages, sec. 113 and cases cited. 1 Hilliard on Mortgages, chap. 1, secs 6-9. Campbell v. Tompkins, 10 Reporter, 537. The wife is surety and extension of time releases her mortgage. Hubbell v. Osborn, 22 Kan. 363, and cases cited. Jaffray v. Crane, 7 N. W. Rep., 301.

OPINION

COBB, J.

There are three principal questions presented by the record in this case.

First. Was 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?

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, 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 remove 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 or future creditors of Craig have any right to complain.

In deciding the case of Demarest v. Wynkoop, 8 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 The Fireman's Insurance Company 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 mortgage, as if she were a feme sole.

In the case of Robbins v. Abrams, 1 Halsted Chy. 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 land 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 principles of the common law.

In the case of Smith v....