105 P. 71 | Idaho | 1909
— This action was brought to recover judgment for a sum of money which the plaintiff was com
The case was tried by the court without a jury, and findings and judgment were made and entered against Margaret J. Johns for the full amount of said notes and interest, and judgment entered in favor of the defendant Frank Johns for his costs. From the judgment in favor of the latter the plaintiff has appealed.
The entering of judgment in favor of Frank Johns and in not directing the judgment entered to be satisfied out of the separate property of Margaret J. Johns and the community property of said Margaret J. and Frank Johns is assigned as error.
It is contended by counsel (1) that by the common law the husband was liable for any debt which his wife might legally contract, and, since that law constitutes the basis of our jurisprudence, rights and liabilities must be determined in accordance with its principles, except so far as they are modified by statute; (2) that the statute has modified the common law in so far as it renders the separate property of the wife liable for her debts and exempts the separate property of the husband from liability; (3) that the liability of the husband for the post-nuptial debts of the wife to the extent of the community property still exists, for the reason that no statute has been enacted in this state exempting it from such liability.
See. 2686, Rev. Codes, is as follows:
“The husband has the management and control of the community property, with the like absolute power of dis*229 position (other than testamentary) as he has of his separate estate; but such power of disposition does not extend to the homestead or that part of the common property occupied or used by the husband and wife as a residence.”
Under our statute the husband must maintain and support the wife and family. The wife is under no obligation to maintain the family out of her separate property except when the husband has no separate property and they have no community property and the husband from infirmity is not able or competent to support himself. (Rev. Codes, secs. 2688, 2674, 2685, 4479; Edminston v. Smith, 13 Ida. 645, 121 Am. St. 294, 92 Pac. 842, 14 L. R. A., N. S., 871.)
The community property cannot be bound by post-nuptial contracts of the wife made for the use and benefit of her own separate property. (Rev. Codes, secs. 2686, 5713; Ballinger on Community Property, sec. 116.)
In this case it appears that the wife borrowed the money for the benefit of her own separate estate, without the knowledge and consent of her husband. It was held in Franklin v. Foster, 20 Mich. 75, that where a party who lends money to a wife known to him to be for her private use, and who, at the wife’s request, conceals the fact of such lending from her husband, cannot maintain an action against her husband for the money loaned.
The only question for consideration in this ease is whether under the laws of this state the community property is liable upon a contract made by the wife during coverture for her own use and benefit. Counsel for appellant contend that as by the common law the husband was liable for any debt which his wife might legally contract and the indebtedness involved being legal indebtedness of the wife, the community property is liable for the debt. Under the principles of the common law a married woman had no legal existence; her property became the property of her husband, and the right to contract, either generally or with reference to property, was merged in the husband. She had no separate, legal existence under the law; she had no consenting capacity; she was considered to be under the control of her husband. Of course, there were some exceptions to this rule. She was
See. 2677 of the Rev. Codes gives the wife absolute control of her separate property. She may dispose of it and contract with reference to it in the same manner and to the same extent and with like effect as a feme sole or as a married man in relation to his own property, and that section also provides that the husband shall be bound by such contracts to no greater extent or effect than his wife, under similar circumstances, would be bound by his contracts. This really means that the husband is not bound at all, because neither the wife nor her property is bound at common law nor under the statute by the contract of the husband. The legislature only intended to empower the wife to bind her separate property by contracts entered into respecting the same or for her own use and benefit, and did not intend to permit the wife to burden that property which the law reeog-
In order to illustrate the ease at bar, we will say the defendant Johns and his wife have accumulated a thousand dollars’ worth of community property, and the wife, without his knowledge or consent, borrows a thousand dollars for her own use and benefit. When the note becomes due Mrs. Johns is unable to pay and the lender brings his action against Johns to recover the amount of the debt. If Johns were held liable to pay that debt, the entire community property might be swept away. The fund especially looked to to support the family would be taken to pay the wife’s debt made by her without the knowledge or consent of her husband and for the benefit of her own separate estate. If the wife could thus make the community property directly liable for her debts, she could do indirectly what she could not do directly. She could not directly effect an alienation of the community property, for by the provisions of said see. 2686, Eev. Codes, the husband has the management and control of the com
To hold that the wife could thus dispose of the community property would be nullifying the provisions of said statute, and the wife would have the absolute power of disposition as well as the husband.
From the foregoing, we conclude that the community property is not subject to the payment of said indebtedness, and for that reason the judgment of the trial court must be sustained, and it is so ordered. Costs are awarded to respondent.