Bailey v. Fink, 129 Wis. 373

Bailey v. Fink

129 Wis. 373 | Wis. | 1906

Maeshall, J.

The only controversy here is as to whether the findings are supported by the evidence. That must be determined in the light of the familiar rule that the conclusions of a trial court on issues of fact are to be regarded as verities on appeal, unless contrary to the clear preponderance of the evidence.

There is no room for fair controversy on the evidence but *375what the note in suit was given to take up one of respondent’s husband’s, secured by a chattel mortgage on some live stock belonging to him, and that she signed as surety. The contention that the trial court erred in bolding that she signed solely as surety, receiving no consideration therefor, and that her act did not in any way concern her separate property or estate, is grounded on evidence.to the effect that Mr. Firilc desired to rent the farm on which he and his wife resided, which belonged to the latter, to a Mr. Kosel and to have him buy the chattel property thereon, which was mortgaged to appellant; that Kosel would not deal that way unless the mortgage was released, and that the note in suit was given for that purpose.

The farm was not rented to Kosel or any one else, so far as appears, so no consideration on that score passed to respondent for her part in the transaction, unless there was one in that appellant surrendered her security on the chattels in consideration of the new note, to remove an existing impediment to renting the farm. It does not seem that the trial court was bound to so find, or to find that the transaction concerned the separate property or business of respondent, since there is ample evidence that Kosel was willing to rent the farm without buying the stock and offered to do so, but that Mr. Fink insisted upon his doing both if he took the place. In that situation the court was warranted in deciding that the giving of the note, as regards Mrs. Fink, was solely to aid Mr. Fink to sell his stock and that she signed as surety merely.

It is insisted that appellant changed her position on the-faith of respondent’s part in the transaction, and that the latter having declared in the paper that she intended to-charge her separate property she should be held liable. It must be borne in mind that this is an action at law, — purely so, — although tried by the court. Eespondent could not be charged in that form of action, as this court has repeatedly *376held, unless her act in becoming a party to the note was necessary or convenient to the use and enjoyment of her separate property, or to the carrying on of her separate business, or related to her personal services. Mere intention to charge her separate estate, or the existence of equitable grounds for charging it, are not sufficient at law. They are good only in equity. Emerson-Talcott Co. v. Knapp, 90 Wis. 34, 62 N. W. 945; Mueller v. Wiese, 95 Wis. 381, 70 N. W. 485; Hollister v. Bell, 107 Wis. 198, 83 N. W. 297; Stack v. Padden, 111 Wis. 42, 86 N. W. 568; Ritter v. Bruss, 116 Wis. 55, 92 N. W. 361; Loizeaux v. Fremder, 123 Wis. 193, 101 N. W. 423; Breed v. Breed, 125 Wis. 100, 103 N. W. 271.

In Hollister v. Bell, supra, it was said:

“A married woman’s note, given solely for the purpose of securing or paying the debt of a third person, is void at law and not enforcible in equity against her separate property in the absence of some equitable considerations rendering such enforcement, under the circumstances, just.”

It was further said that a plain action at law upon a married woman’s note cannot be turned into an equitable action and such relief given as is grantable only in equity. Again it was said in Ritter v. Bruss, supra:

“When it appeared by the evidence that the defendant” sought to be charged “was a married woman, and that the -debt represented by the note was the husband’s, there could •be no recovery against her in an action at law, unless it was shown that the transaction was necessary and convenient for the use and enjoyment of her separate estate, or the carrying on of her separate business, or in relation to her personal services.”

And further, quoting from Stack v. Padden, supra:

“It is not sufficient that a married woman shall merely make a contract intending to charge her separate property. It must concern her separate property or business or personal services.”

So it will be seen that the conditions requisite to a recovery at law against a married woman are all clearly nega-*377lived in tbe findings. As we view tbe record snob findings •cannot be disturbed. Tbe chattel mortgage released, as before indicated, was on tbe property of Mr. Firilc. Tbe debt represented by tbe note exchanged for tbe new note was solely bis debt. Tbe evidence warranted tbe court in con--clnding that tbe release was secured solely to facilitate bis •efforts to close out bis stock. If there are equitable considerations for charging tbe property of respondent, and that she so intended, they are, as has been seen, not available in this action. The,fact that tbe note contains a declaration •of such intention is of itself a pretty strong indication that it was not thought when tbe paper was prepared that respondent’s part in tbe transaction would render her liable at law.

By the Court. — Tbe judgment is affirmed.