24 Iowa 80 | Iowa | 1867
2. — husband aud wife: famiiynecessaries. We then inquire, does this affirmatively appear ? As to the husband, we answer most unhesitatingly, clearly not. Plaintiff counts upon the facts, and this was , , needful to show the wife s liability. Put, though the last item of the account is dated in January, 1858, and though without more the action would have been barred in July, 1863 (§ 2740, Rev. Cl. 3), it must be
But manifestly the important question is, whether plaintiff’s remedy against the wife is barred by the statute. And here, also, we. feel constrained to hold that the court below errred.
By § 2507 of the Bevision, it is declared that the expenses of the family, the education of the children, and such other obligations as come within the equity of the provision, are chargeable upon the property of both husband and wife or either of them, and in relation thereto they may be sued jointly, or the husband separately. The prior section provides that the husband is not liable for the separate debts of the wife, nor is her separate property liable for his debts; but the separate debts of the wife, thus referred to, include only contracts made in relation to her separate property or such as purport to bind herself only. But, because the expenses of the family and the education of the children should, to the extent of their property, be met by each, the legislature has provided, that, for just such expenses, their property shall be chargeable. Not that the wife is liable generally, though the husband is, but that the property is liable. And here we remark, that there is no objection that the petition seeks a general judgment against the wife. Nor is it suggested that there is nothing to show that she has property upon which this debt should be a charge. The only point made is that the claim is bai’red. The husband- is the head of the family. He determines primarily what is
If he contracts a debt for the education of the children, and gives his note payable three years thereafter, the cause of action accrues as against both at the maturity of the note, and not at the time the debt was contracted. So if he buys flour, meal, sugar, coffee, butter and other articles, and shall, at the time of obtaining the credit, promise to pay in one, two or three years thereafter, the statute does not run as to either, until the time of payment expires. And the same is true where he, after the articles or goods are furnished, gives his promise to pay; the maturity of this promise being the time when the cause of action accrues. These expenses are in the nature of equitable charges upon the property of each. The fact that the form of evidence of the indebtedness is changed from an account to a note makes no difference, unless, indeed, there was an agreement or understanding that the creditor looked alone to the husband — a fact which is expressly rebutted by the averments of 'the petition. . It is not unlike a mortgage executed by husband and wife to secure the note of the husband. The renewing of the note by the husband does not discharge the lien. Nor in such a case would the statute run in favor of either from the maturity of the first note, but of the new one.
Our law is liberal in protecting the rights of the wife, in relation to her property real.and personal. But it has not gone so far as to abolish the headship of the family,
[Reversed.