| Or. | Apr 20, 1885
The defendants were husband and wife. The plaintiff, who is the assignee of Marks & Co., bases his right to relief upon the grounds, (1) that the indebtedness, consisting of a promissory note, book-account, and goods, wares, and merchandise, which were sold and delivered as future advances, was by agreement of the parties secured by a deed intended to operate as a mortgage, and executed ■ by the defendants upon the separate property of the wife; (2) that the whole amount of such indebtedness was made and incurred for expenses of the family in the purchase of goods, wares, and .merchandise by tlie defendants as husband and wife, and that the same were received and used in their family, consisting of the defendants and their children. The wife denied that the deed was executed as a payment of the whole of such indebtedness, but alleged that it was executed and given only as a security for the payment of the note, and no more; but she did not deny the correctness of the claims or amounts, nor that the goods, wares, and merchandise were purchased for and used by the family, or that they were the expenses of the family. After a trial upon the merits, the court found that the deed was executed and intended to operate only as a security for the payment of the note, but that the balance of the indebtedness was contracted for family expenses, in the purchase of goods and merchandise, which were received and used in the family of the defendants, and was properly chargeable upon the property of the wife, and
Section 10 of the Act of 1878 provides “ that the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.” (Sess. Laws 1878, p. 94.) The general effect of this act was, undoubtedly, to extend and enlarge the rights and liabilities of married women much beyond previous limitations. The disability to make contracts and incur liabilities, which formerly existed at law, it removed, and now a married woman may do either, and her contracts and liabilities may be enforced by or against her to the same extent and in the same manner as if she were unmarried. For liabilities incurred as a family expense she may be sued at law jointly with her husband, or separately, and a personal judgment may be rendered against her. This was expressly recognized by this court in Watkins v. Mason, 11 Or. 72" court="Or." date_filed="1883-03-15" href="https://app.midpage.ai/document/watkins-v-mason-6894400?utm_source=webapp" opinion_id="6894400">11 Oreg. 72. And see also Polly v. Walker, 60 Iowa, 88; Jones v. Glass, 48 Iowa, 345" court="Iowa" date_filed="1878-04-20" href="https://app.midpage.ai/document/jones-v-glass-7097848?utm_source=webapp" opinion_id="7097848">48 Iowa, 345. There is, then, under the statute, a remedy at law which may be enforced against her for an indebtedness incurred as a family expense, for which her property may become liable.
It is insisted by counsel for the appellant that there is a complete remedy at law for the matter upon which that portion of the decree appealed from is based, and that as to it the decree ought to be reversed, and the complaint dismissed. His contention is to the effect that this objection is jurisdictional, and ought to be enforced by the court sua sponte. This is the rule in the United States courts when the objection is well taken, though it is not raised by the pleadings, nor suggested by counsel. (Oelrichs v. Spain, 15 Wall. 228.) Our Code provides that “the enforcement or protection of a private right, or the"prevention of or redress for an injury thereto, shall be obtained by a suit in equity, in all cases where there is not a plain, adequate, and complete remedy at law”; but this, probably, is merely declaratory of the pre-existing rule. (Oelrichs v. Spain, supra.) When the right is of such a character that a court of law is
“The right to a trial by a jury is a great constitutional right, and it is only in exceptional cases, and for specified causes, that a party may be deprived of it. It is in vindication of this great principle, and as declaratory of the common law, that the Judiciary Act of 1789, in its sixteenth section, declares ‘that suits in equity shall not be sustained in either of the courts of the United States in any case where adequate and complete remedy may be had at law.’” (Grand Chute v. Winegar, 15 Wall. 375; Insurance Co. v. Bailey, 13 Wall. 616" court="SCOTUS" date_filed="1871-12-11" href="https://app.midpage.ai/document/insurance-co-v-bailey-88498?utm_source=webapp" opinion_id="88498">13 Wall. 616; Hipp v. Babin, 19 How. 271" court="SCOTUS" date_filed="1857-02-17" href="https://app.midpage.ai/document/hipp-v-babin-87090?utm_source=webapp" opinion_id="87090">19 How. 271-278; Parker v. Winnipiseogee Lake etc. Co. 2 Black, 550, 551.)
As a result of this doctrine, stated in its broadest terms, the general principle deducible from the authorities and text-writers, with perhaps some qualification or limitation, is that where the right or interest to be protected is of a purely legal character, and a court of law can, by its mode of procedure and judgment, do complete justice to the matter in controversy as a court of equity, the remedy is at law, and the jurisdiction of equity will
Under section 10 the property of the husband, like the wife, is chargeable for family expenses; but it is apprehended that on liabilities incurred by him for family expenses, in the purchase of goods and wardrobe used in the family, the remedy is exclusively at law, unless the transaction is in some way equitably connected. But now he, or she, or both of them, may be sued at law, and the judgment obtained enforced against the property for a debt incurred for family expenses (Watkins v. Mason, supra); bqt there is this difference, that the husband was liable originally to an action at law for such debts, but the wife has only become so by virtue of the statute. With him the right to contract, and the capacity to sue or be sued at law, existed originally; and the remedy at law being adequate and complete to attain the ends of justice without the aid of equity, there could be no pretense for the exercise of chancery jurisdiction. With her the case was wholly different. The law recognized in her no separate existence or identity. It was merged in her hus
The general rule established by the authorities is that when a court of equity originally had jurisdiction in any class of cases, for which the ordinary proceeding at common law did not then afford an adequate remedy, that jurisdiction will not be lost by reason of subsequent legislative enactments which confer on courts of law authority to decide in such cases, unless there are negative words excluding the jurisdiction of courts of equity. This principle is thus stated by Judge Story: —
“ In modern times courts of law frequently interfere, and grant remedies under circumstances in which it would have certainly been denied in earlier times, and sometimes the legislature, by express enactments, have conferred on courts of law the same remedial faculty that belongs to courts of equity • now in neither case, if courts of equity obtained and exercised jurisdiction, is that jurisdiction overturned or impaired by this change of authority at law in regard to legislative, enactments? For, unless there are prohibitory or restrictive words, the uniform interpretation is that they confer concurrent and not exclusive remedial authority.” (Story Eq. Juris. § 80.)
The same principle is thus stated by Mr. Pomeroy: —
.“Whenever the statutes conferring the new jurisdiction upon the law courts are permissive only, or whenever they not only contain no express prohibitive language, but also do not indicate from all these provisions, taken together, any clear intent to restrict the equitable jurisdiction, that jurisdiction remains
As a result of this doctrine a creditor may resort to either forum to enforce his claim against the separate property of a married woman, unless the intent to exclude the equitable jurisdiction is clearly manifested by the statute. This has been expressly decided. In Mitchell v. Otey, 23 Miss. 236" court="Miss." date_filed="1851-11-15" href="https://app.midpage.ai/document/mitchell-v-otey-8256355?utm_source=webapp" opinion_id="8256355">23 Miss. 236, it was held that the provisions of the “Married Woman’s Law” of 1846 do not oust the original jurisdiction of courts of equity in cases affecting the estates of married women, and that a creditor may assert his demands against the husband and wife at law at his election, the two jurisdictions being concurrent in such cases. Now, it must be conceded there are no negative words in the section nor the statute, excluding the equitable jurisdiction, nor do we discover any intent, expressly or by implication, to make the remedy at law exclusive in cases where the right or estate to be protected, enforced, or redressed was originally available only in equity. All that can be said is that the liability of the property of the wife for family expenses, under the section, has been extended or enlarged beyond what it formerly was. Although primarily the husband is the head of the household, and as such bound to provide for his family, yet the wife’s separate estate was chargeable in equity for necessaries furnished on her credit and intended to be a charge against her estate. “Family expenses” may include necessaries, and more. In Smedley v. Felt, 41 Iowa, 590, the court, in commenting upon a section of the statute identical with this, said:—
“The language of the statute is general. It applies to the expenses of the family without limitation or qualification as to
But this, in fact, is only an enlargement of the subject-matter upon which equity acted; it does not touch or impair the power or jurisdiction of equity. The object of these enabling statutes generally is, unless the intent is clearly otherwise expressed, to bring and regulate the legal rights and liabilities in harmony with equitable principles. The jurisdictions are concurrent, and the fact of a remedy at law does not, in such case, oust the equitable jurisdiction, and the objection, therefore, is unavailing. It was also objected that, although the facts stated might authorize the interposition of equity to charge liabilities incurred for family expenses against the property of a married woman, the subject of this suit was based more properly upon the agreement under which the deed was given as a security and to operate as a mortgage. But this is not the case. The facts set up two grounds upon which relief is based. It is true that they might have been better stated, but there is not a defect of substance, and this is admitted.
The facts stated give full notice of the grounds upon which it is sought to charge the property of the defendant, and a trial upon the merits has established the liability and the right to the relief. It is upon the facts that the courts grant relief, although informally stated, where not inconsistent with the purposes of the suit. Informality of statement, which involves no defects of substance, cannot be taken advantage of after trial and judgment. It is, no doubt, true that where the suit is simply for foreclosure, based upon the terms of the contract and mortgage, no debt, except such as is authorized by it, can be decreed to be paid under it. In such case the mortgage cannot be extended to a debt not embraced in its provisions. (Tunno v. Robert, 16 Fla. 738" court="Fla." date_filed="1878-06-15" href="https://app.midpage.ai/document/tunno-v-robert-4913460?utm_source=webapp" opinion_id="4913460">16 Fla. 738.) But that is not this case. Here, the facts constituting the grounds for the relief sought to