31 Cal. 476 | Cal. | 1866
Lead Opinion
The complaint alleges that Greer and his wife jointly made the two promissory notes sued upon; that the consideration of the notes was an indebtedness incurred by the wife for services performed for and at her request respecting certain real estate that she then owned and still owns as her separate property; and the prayer is for judgment against both defendants for the amount of the notes and costs of suit, and that the judgment be decreed to be collected and paid out of the separate property of each of the defendants and the common property of both. A personal judgment against both defendants was rendered in the usual form, without any directions as to the sale of property. The wife alone appeals.
Leaving out of view the document styled a bill of exceptions, in which it does not appear what disposition was made of the objection interposed, and also the statement on motion . for a new trial, which is insufficient, because it does not contain the grounds on which the motion was made, we come to the only accessible point remaining, and that is whether the facts stated in the complaint entitle the plaintiff to a judgment against the appellant.
It.will be observed that the facts are nearly identical with those in Maclay v. Love, 25 Cal. 367, and that case must be decisive of this, unless the plaintiff produces some fact that relieves it from the operation and control of the principles there laid down, for the counsel for the plaintiff do not attack, but rely upon the doctrines and authority of that case.
They claim that they find the fact which takes the case out of the authority of Maclay v. Love in this averment of the complaint. It is stated that both defendants made and delivered the promissory notes, and counsel contend that as a married woman could not be said to have made a contract unless she acknowledged it, therefore “ the averment of the making is an averment of the doing of all those acts necessary to its making.” Concede to the plaintiff the benefit of this argument, and he then has what the plaintiff in Maclay v.
The sole purpose of a certificate of acknowledgment is to furnish proof of the due execution of the instrument, which the statute permits or requires to be proven in that manner. When it is said that the deed of a married woman is not complete without the certificate of acknowledgment, and that the certificate forms an essential part of the conveyance, the meaning is not that it forms a part of the deed, as her signature or words expressive of conveyance do, but merely that the deed cannot be offered in evidence or used in any manner to show that title has passed from her, unless it bears on its face the evidence of its due execution. The certificate of acknowledgment still remains solely as evidence of the execution of the instrument, and thus the plaintiff, at the utmost he can claim, had this advantage—and we do not think counsel would assume the risk of relying on it—that he could offer the notes in evidence without further proof than appeared on the face of the notes, that they were made by the married woman.
The question now arises as to the capacity of such a note to affect or charge the separate estate of a married woman, under the provisions of section six of the Act of 1850, defining the rights of husband and wife. The first difficulty the plaintiff must encounter is that a promissory note is merely d contract creating a personal liability" against the maker; and Maclay v. Love holds, as do all the cases in this Court, in which the point has been passed upon, that a married woman has no capacity to create a mere personal liability by contract in any form, unless in exceptional cases, as under the Sole Trader’s Act. Another insurmountable obstacle is that "according to section six, which, as construed in Maclay v. Love, is prohibitory in its terms, a married woman is disabled from conveying or charging her separate estate, except in the mode therein provided; that is, by an instrument in writing made for that purpose, and executed and acknowledged according to the provisions of that section.
Concurrence Opinion
I concur in the judgment.