Andrews v. Andrews

3 Wash. Terr. 286 | Wash. Terr. | 1887

Mr. Chief Justice Greene

delivered the opinion of the court.

The judgment sought to be vacated by the suit from which this appeal arises was in form a personal judgment against the appellee Mr. Andrews. It was under our statutes valid and enforceable, and capable of being made a lien as against his individual property. It was also valid and enforceable, and a lien under it was capable of assertion as against, community personal property of Mr. Andrews and his wife. (Code, sec. 2409.) If the judgment was one recovered for a community debt, the lien of it would extend to and cover community real estate likewise. (Code, sec. 2410.) But as to whether the lien of it touched community real property, the wife, having never had opportunity to be heard in the original action, had a right to be heard in some suitable form of action or proceeding, as soon as there was an attempt to subject community real estate to the satisfaction of it. Appellant’s position that the judgment should be considered as prima facie for a community debt, we regard as correct; but when he "goes on to contend that inasmuch as it was prima facie such, it was irregular and voidable because affecting the community real estate, and liable to be vacated in equity at the suit of the wife, we cannot follow him. ITe seems to call upon us to hold that no husband who with his wife possesses community real estate can be subjected, against the objection of his wife or without her consent, to a personal j udgment even for his personal debt. But undoubtedly the law is that a husband’s creditor can, regardless of the wife, pursue-him to judgment, and take his property in execution,, not excepting even the community personal property. And the law is clear, also, that the same judgment security for his debt, which the creditor has a right to compel, can by confession of judgment be voluntarily conceded. So long as there is only a judgment or a judgment lien confessed or suffered by the husband alone, the community interest in real estate is not affected, unless, in fact, the debt upon which the judgment was given was a community debt. The force and qualification of the lien of a judgment to which the husband only is a party, as affecting community real estate, is given in section 2410 of the Code, by way of proviso to-the restriction on the power of the husband to.alienate or encumber such property. In the statute itself the wife and all the world have notice of the limitation of such a lien as regards such property. Indeed, the judgment not being determinative of any issue as to the character of the property which is to be included in its lien, the husband himself would be at liberty to contest the extension of the lien over community real estate. We see no way for a creditor to get a judgment lien conclusively operative upon such real estate, except as the result of an action or proceeding to which both husband and wife-were parties, and in which the community character of the debt is admitted or in issue. It may be that he could come into court in the first instance, alleging the community character of the debt, and obtain a judgment as for a community debt.

There is nothing in the decision of Jackson v. Holyoke, 3 Pac. Rep. 841, that militates against these views. In that case, it was held that under a statute like ours a husband’s agreement to sell community real estate was void. This was held as a logical deduction from the restriction on the husband’s powers contained in section 2410. We approve and affirm that decision. But it determined nothing as to the power of the husband to bind the community real estate by a judgment recovered against himself for a community debt.

We are of opinion that Mrs. Andrews was entitled to her day in court, not to attack the judgment confessed by her husband, but to resist or vacate the sale of community real estate under execution issued thereupon. But when she came into court for such a purpose, the burden was upon her to show that the character of the judgment debt was such as would not warrant the sale. In this respect, her complaint is defective, and the evidence appearing in the transcript is not such as to aid its infirmity. We think the district judge was right in refusing to allow the proposed supplemental complaint to be filed. That complaint, if introduced, would have effected a revolution in the issues to be determined, and would have amounted to a substitution of a new cause of action.

The judgment of the District Court must be- affirmed, with costs.

Turner, J., Bud Langford, J., concurred,