29 Cal. 564 | Cal. | 1866
The only question requiring consideration 'is whether a married woman, who had availed herself of the provision of the Act of 1852, to authorize married women to transact business in their own names as sole traders, and had declared her intention to conduct and carry on the business of keeping a public hotel or eating house, and of carrying on a general farming and ranching business, in her own name and on her own account, could, while that statute remained in force, execute in her own name a valid promissory note for a part of the purchase money for a tract of land sold and conveyed to her, and could execute in her individual name, without joining her husband, a valid mortgage of the premises, to secure the payment of the promissory note.
The statutes of this State defining the rights of husband and wife, have made .provision for the acquisition, management,
The right and capacity to purchase property in her own name, to be used about her business, is necessarily incident to the power conferred upon her to act as a feme sole in such business; and in conducting the business of farming we can see no objection to her purchasing lands, that would not equally apply to a purchase of grain for seed. Conceding to her the capacity to effect a purchase of property to be used in her business, that a feme sole possesses, her authority to make
The conveyance of the land by the plaintiff to the defendants, and the notes and mortgage executed by them to the plaintiff, to secure a part of the purchase money, constitute one transaction, and her liability on the mortgage rests upon the same principles as her liability on the notes. To deny her the power, without the aid of her husband, to create a lien upon the property purchased by her on credit, to secure the purchase money, subjects the property invested in her business to some extent to the control of her husband; and while it treats her as a feme sole in making the purchase, converts her into a feme covert when payment is attempted to be enforced by process of law.
The property must be such as is acquired by her for use -in her business; and the question whether it was acquired for that purpose is a question of fact. The Court found that she “ executed and delivered the said notes and mortgage in the course of her business as such sole trader, for the purpose of carrying on said business,” and the evidence tends to prove the fact as found. And besides this, the allegation in the complaint that she,- in ’connection with her co-defendant, has since the time of the purchase of the lands continued to possess and occupy the land and use the same in her business as such sole trader, is not denied by the answer, for the denial attempted amounts only to a denial of her continuous occupation. The use to which the property was put during that time, serves to show the purpose for which it was purchased.
Judgment affirmed.