85 P. 497 | Idaho | 1906
Lead Opinion
This action was commenced by the Bank . of Commerce against Geo. E. Baldwin and Sarah A. Bowers to recover a balance of $5,697.05 due on a promissory note executed by Baldwin and Mrs. Bowers on the fourth day of November, 1903. Baldwin defaulted and Mrs. Bowers answered admitting the execution of the note and the amount
In Dernham v. Rowley, supra, the question arose as to the power of the wife to bind herself to pay a' debt contracted by the husband for his use and benefit, and this court speaking through Chief Justice Morgan said: “From this exposition it will clearly appear that in order to charge the separate property of the wife, or render it liable to levy and sale, it must be alleged in the complaint, and proven, that the debt was incurred for the use and benefit of her separate property, or was contracted by her for her own use and benefit. ’ ’
In Jaeckel v. Pease, supra, the question arose as to the power of the wife to bind herself on a debt contracted for the benefit of the community property, and this court, speaking through Justice Quarles, said: “A married woman cannot bind herself personally for the debt of her husband, or for a community debt, and it is error to render judgment jointly against the husband and wife on a note signed by both in the absence of a showing that the debt was created for the separate use and benefit of the wife, or for the use and benefit of her separate estate.”
In Strode v. Miller, supra, the same principle was enunciated and Jaeckel v. Pease was cited with approval.
In Holt v. Gridley, supra, a similar question was involved, and this court, speaking through Justice Sullivan, said: “It also appears that the defendants are husband and wife, and there is nothing in the record to show that her separate property is liable for the indebtedness sued on herein. Where it is sought to make the separate property of a married woman liable for debt, it must be alleged and proved that the debt is her own, or made on behalf of her separate property. The wife is not personally liable for the debts of her husband, and neither is her separate property.”
Concurrence Opinion
Concurring. — I concur in the conclusion reached to the extent that a new trial should be granted, but am unable to concur -in the conclusion that under the laws of this state a married woman cannot bind herself personally, for the payment of a debt that was not contracted for her own use or for the use or benefit of her separate estate.