44 P. 643 | Idaho | 1896
(After Stating the Facts.) — The only question before tins court in this case is, Can a creditor attach the separate property of a married woman upon a several' promissory note executed by her without alleging and proving that the contract was made with reference to her separate property or for her personal benefit? The appellants contend that, under the statutes of Idaho, a married woman may during coverture make any contract that may be made by a feme sole or by a man of lawful age. Under the common law, the rights and privileges of a woman, so far as making contracts were concerned, were merged in the husband at marriage. Nearly all property rights were also subject to the control of the husband. The inquiry then arises, What changes have the statutes made in the rules of the common law?
By section 2498, the husband has the management and control of all other separate property of the wife, but he cannot convey it away nor encumber it in any manner except by an instrument in writing signed by both husband and wife and acknowledged as directed by the statute. In this way the separate property of the wife may be pledged for the debts of the husband, but in no other way.
By section 2502 of the Eevised Statutes it is provided that “the earnings and accumulations of the wife and of her minor children living with her or in her custody while she is living separate and apart from her husband are the separate property of the wife.”
These accumulations being received by her and remaining necessarily in her possession, the management and control thereof must necessarily belong to her. Concerning this property, she may enter into contracts; any other view would render such property valueless to her. When living separate and apart from her husband the law gives her the right to dispose of her time and labor as she sees fit. Her earnings and accumulations thus acquired being granted to her as her separate property, such grant “ex necessitate rei" must carry with it the right of disposal, and therefore the right to contract with reference thereto. Section 2504 provides “that the separate property of the wife shall not be liable for the debts of the husband, but shall be liable for the debts of the wife, contracted either before or after marriage.”
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 or benefit of her separate property, or was contracted by her for her own use and benefit. The judgment of the court below is affirmed, with costs to respondents.