297 N.W. 541 | Neb. | 1941
The question for determination is whether Lydia M. Plumer, defendant, bound her separate estate for the payment of a 25,000-dollar loan procured by her from the Federal Land Bank of Omaha, plaintiff. The loan was evidenced by a note for that amount and secured by a mortgage on the east 320 acres of section 7, township 8 north, range 12, Otoe county. Both instruments were dated February 24, 1927, and signed by Lydia M. Plumer and her husband, Lee E. Plumer, the former name above the latter. For defaults in payments of debt and interest due on the mortgage, the district court for Otoe county, at the suit of plaintiff, decreed foreclosure May 11, 1937. Under the decree the sheriff sold the mortgaged land to plaintiff December 5, 1938, and the sale was confirmed December 9, 1938. The debt, interest and costs exceeded the purchase price to the extent of $10,425.83. For this deficiency plaintiff sought by motion to recover a judgment against Lydia M. Plumer. The issues of coverture and of personal liability of the wife for the deficiency were raised by pleadings. The trial court heard the parties at length, made findings in favor of Lydia M. Plumer and overruled the motion for a deficiency judgment. Plaintiff appealed.
Plaintiff contends that defendant, Lydia M. Plumer, procured the loan personally and secured it by mortgage on her own land; that.she incurred the debt in the course of her separate business or occupation and on the faith and credit of her separate property; that she contracted the debt with reference to farming* in which she was engaged on her own account at the time she borrowed the $25,000 from plaintiff; that the evidence so proves and that the judgment to the contrary cannot be permitted to stand. Plaintiff relies on proof of these facts and on the following provisions of statute:
*303 “A married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to'the same extent, and with like effect as a married man may in relation to his real and personal property.” Comp. St. 1929, sec. 42-202.
“Any married woman may carry on trade or business, and perform any labor or services on her sole and separate account; and the earnings of any married woman, from her trade, business, labor, or services, shall be her sole and separate property, and may be used and invested by her in her own name.” Comp. St. 1929, sec. 42-203.
In support of the judgment below counsel for Lydia M, Plumer, defendant, calls attention to the statute which provides :
“The property, real and personal, which any woman in the state may own at the time of her marriage, and the rents, issues, profits, or proceeds thereof, and any real, personal, or mixed property, which shall come to her by descent, devise, or the gift of any person except her husband, or which she shall acquire by purchase or otherwise, shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to disposal of her husband, or liable for his debts.” Comp. St. 1929, sec. 42-201.
In connection with the law thus quoted, reference is made by counsel for defendant to evidence tending* to prove the following* facts: The note and mortgage were signed by both wife and husband. The land mortgaged was-the husband’s estate by title from his parents, not from her parents. He conveyed it to his wife by deed June 21, 1919, without consideration. The deed was recorded without her knowledge June 23, 1919. She never had possession of the deed. The title was reconveyed by her to her husband February 20, 1928, without consideration. Plaintiff was notified of the transfer. The husband, Lee E. Plumer, assumed the mortgage and requested notice of maturing instalments of the debt. The wife, Lydia M. Plumer, never made any payments on the note or mortgage nor was she
From testimony tending to prove the facts outlined and from documentary evidence of similar import, counsel for defendant argue that inquiry of defendant while in possession of the land would have elicited knowledge that the property mortgaged did not belong to her separate estate and that the real owner was her husband, Lee E. Plumer; that plaintiff did not rely on her ownership of the property as security or look to her separate estate for payment of the note and mortgage; that she held title for her husband to procure a loan for payment of his debts; that the land was his; that he was the principal debtor, his wife at most a surety, binding herself only to the extent of her interest in the identical land encumbered by the mortgage.
The position thus taken is' defended by impressive argument, but the evidence on the other side of the controversy also must be examined before a conclusion is reached. Where the contract of a married woman does not in express terms bind her separate estate for payment of a debt partially secured by a mortgage in which she is a mortgagor the question of her intention to do so, if put in issue by pleadings in a foreclosure suit, must be determined as a fact from all the evidence and the surrounding circumstances. Fidelity & Deposit Co. v. Lapidus, 136 Neb. 473, 286 N. W. 386. It is shown by the evidence that when Lydia M. Plumer, defendant, applied to plaintiff for her loan February 2, 1927, and when she signed the note and the mortgage February 24, 1927, she was individually engaged in farming on her own account and in her own name. In that enterprise she owned extensive farm lands
It would be ascribing too much to foresight to infer from the facts and circumstances of this case that the husband deeded his 320 acres of land to his wife June 21, 1919, for the purpose of enabling her to procure for him a loan February 24, 1927. She made use of her title, possession and ownership to procure the loan in her own name as evidenced by her statements over her own signature. It seems more reasonable to infer that her title was absolute as it was used by her and as shown by the public records and by her own conduct. An inference that inquiry of her, while in possession of the land before the loan was made, would have elicited the fact that her husband was the real owner is not warranted by the circumstances. Such a disclosure would quite likely have prevented the loan. It seems more logical to infer that inquiry would have elicited what is stated in her application.
Examination and consideration of all the oral testimony and the documentary proofs lead to the conclusion that the preponderance of the evidence requires findings that Lydia M. Plumer, defendant, owned in her own name and in her own right the 320 acres of land described in the mortgage when executed; that she contracted the debt evidenced by the note with reference to her separate property and with reference to her own trade or business; that she intended to bind her separate estate for payment of the note and mortgage and did so.
The legislative act of 1933, taking from the district courts the power to enter a deficiency judgment in a suit to foreclose a mortgage, does not apply to the present case for the reason the mortgage was executed before that restriction was imposed and was not then due nor in litigation. Comp. St. Supp. 1939, sec. 20-2141; Filley v. Mancuso, 135 Neb. 403, 281 N. W. 850.
Reversed.