Sweazy v. Kammer

• Decision Date: 07 October 1879
• Citation: 2 N.W. 506,51 Iowa 642
• Parties: SWEAZY v. KAMMER
• Court: Iowa Supreme Court

2 N.W. 506

51 Iowa 642

SWEAZY v. KAMMER

Supreme Court of Iowa, Des Moines

October 7, 1879

Appeal from Lee Circuit Court.

ACTION in equity. The defendant and Eugene Kammer, her husband executed the following promissory note: "$ 1,625. KEOKUK, IOWA, February 12, 1866.

"One year after date we, or either of us, promise to pay to the order of Caleb Sweazy sixteen hundred and twenty-five dollars, value received, payable at the banking house of Geo C. Anderson & Co., Keokuk, Iowa with interest from date at the rate of ten per cent per annum until paid.

"EUGENE KAMMER.

"N KAMMER."

The object of this action is to charge the separate estate of the defendant with the payment of said note. The Circuit Court dismissed the petition, and the plaintiff appeals.

AFFIRMED.

M. A. Ballinger and H. Scott Howell, for appellant.

Gillmore & Anderson, for appellee.

OPINION

SEEVERS, J.

The note was given for money loaned Eugene Kammer, and was used in his business operations. No part of it was devoted to the separate use of the defendant, or for the improvement of her separate property. The plaintiff testified that Mr. Kammer asked him for the money and "said that his wife wanted him to borrow it and that she would sign the note with him. I told him I would see about it. Mrs. Kammer then spoke to me about it, and requested me to let him have the money and she would sign the note and see that I never lost a cent by him. I had some doubts about his financial standing. * * * We talked about it at different times, and she always said she would see that I did not lose a cent by him. I was thus cautious, as he was considerably in debt. * * * Knowing what I learned from his own mouth, I could not have loaned that amount of money without good security, which I considered his wife to be, as she was estimated to be worth twelve or fifteen thousand dollars."

In October, 1866, the defendant borrowed some money on a mortgage of her separate property, and therewith made a partial payment on said note. The intent of the defendant to charge her separate property can only be inferred from the evidence and circumstances aforesaid. The defendant, in her evidence, substantially denies borrowing the money or saying anything to the plaintiff on the subject. Both she and her husband testify she signed the note unwillingly, and did so only because of certain threats made by her husband.

We are unable to say that an intent to charge the defendant's separate estate has been established by the parol evidence. Conceding it is competent, it may be so established. We think the right of the plaintiff to recover must be determined by the note and the effect of its execution by the defendant, as surety of her husband. At the time the note was executed the Revision was in force, and, so far as the rights of these parties are governed by any statute, they must be determined by its provisions. That the defendant was not bound personally by the execution of the note, and that a recovery thereon against her could not be had at law, was determined in Rodemeyer v. Rodman, 5 Iowa 426, and Jones v. Crosthwaite, 17 Iowa 393.

Wolff v. Van Metre et al., 19 Iowa 134, was an action in equity to foreclose a mortgage given to secure a note executed by a husband and wife, and it was held no personal judgment could be obtained against the wife. Patton v. Kinsman, 17 Iowa 428, was also an action in equity, but the facts were so essentially different from the case at bar that it cannot be regarded as authority.

It is believed to be true that the precise point insisted on by the appellant has never been determined by this court. Independent of any statute the question is not whether a married woman may bind her separate estate in equity for her husband's debts, as there seems no doubt she may do so but the point...