3 Mont. 459 | Mont. | 1880
This action was brought by the respondents to procure the annulment of a deficiency judgment, which had been entered against Rosa S.Yantilburg, the wife of WilliamYantilburg, in favor of Leander M. Black, the appellant,, and enjoin said Black from collecting the same by execution. The court below struck out parts of the complaint and answer and then rendered judgment for Mrs. Yantilburg on the pleadings.
An examination of the following facts will enable us to understand the questions which must be considered. William Yantil burg borrowed of Black before November 6, 1872, six thousand dollars, and the following promissory note was then executed by the respondents and delivered to Black :
$6,000. “ Jefferson CoüNtx, M. T., November 6th, 1872.
Twelve months after date, I promise to pay to the order of L. M. Black, the sum of six thousand dollars for value received, together with interest thereon at the rate of two per cent per month from date until paid, said interest to be paid monthly.
WILLIAM YANTILBURG-.
ROSA S. YANTILBURG.”
A mortgage of the real property of William Yantilburg was executed by the respondents to secure the payment of this note. No part of the consideration was received by Mrs. Yantilburg
How were the rights of Mrs. Vantilburg affected by the execution of the note and mortgage to Black ? The extent of her power in this Territory is determined by the following statutes: “ The common law of England, so far as the same is applicable and of a general nature, and not in conflict with special enactments of this Territory, shall be the law and the rule of decision, and shall be considered as of full force until repealed by legislative authority.” Cod. Sts. 388. Certain. property of a married woman is exempt from the debts and liabilities of her husband. Cod. Sts. 521; Griswold v. Boley, 1 Mon. 545; S. C., 20 Wall. 486; Boley v. Griswold, 2 Mon. 447. The Civil Practice Act provides that “ if a husband and wife be sued together, the wife may defend for her own right.” § 8.
One rule, which is applicable to this subject, has been laid down in Nash v. Mitchell, 71 N. Y. 204, by Mr. Justice Alleu : “The disabilities of a married woman are general, and exist at common law. The capabilities are created by statute, and are few in number, and exceptional.” Many of these disabilities have been
The decisions of the supreme court of California concerning this question have been uniform from the case of Rowe v. Kohle, 4 Cal. 285, to that of Drais v. Hogan, 50 id. 121. In Simpers v. Sloan, 5 id. 457, the court held that a married woman has no power to sign in her own name a promissory note, and execute a mortgage to secure its payment. In Luning v. Brady, 10 Cal. 265, Thomas Brady and his wife, Josephine Brady, made and delivered to Luning a promissory note, and a mortgage securing its payment. Thomas Brady was discharged from his debts under the law for the relief of insolvent debtors, and afterward, a decree was obtained adjudging that Luning recover from Mrs. Brady the amount due upon the note; that the mortgaged premises be sold ; and that Mrs. Brady pay any deficiency aicer the application of the proceeds of the sale. In the opinion of the court, Mr. Justice Field says: “By the common law, a married woman cannot bind herself by contract. * * * The joint and several promissory note of the defendant Brady and his wife was only obligatory as the individual contract of her husband. Rowe v. Kohle, 4 Cal. 285. * * * It follows that the decree is erroneous in adjuging a recovery against the defendant Josephine, for the principal and interest of the note, and in directing execution for any deficiency which may remain after the application of the proceeds of the sale of the mortgaged premises.” The same views are maintained in Brown v. Orr, 29 Cal. 120, and Belloc v. Davis, 38 id. 256.
A brief review of some recent cases by the supreme court of Massachusetts may be instructive. In Athol M. Co. v. Fuller, 107 Mass. 437, Mrs. Fuller, a married woman, gave her promissory note in payment of one made by her and her husband on account of certain articles intrusted to him by the Athol Manufacturing Company. The court held that Mrs. Fuller was a surety for her husband, without any consideration received by her or any benefit to her separate estate, and that the note was
The same doctrine prevails in New York. In Yale v. Dederer, 22 N. Y. 450, it is held that the contract of a married woman, which was not made in her separate business, or does not relate to her separate property, is void at law, and cannot be enforced in equity against her estate, unless the intention of charging her property is expressed in the contract or implied from its terms. This case has been approved and followed in the State. Com. Ex. Bank v. Babcock, 42 N. Y. 614; Manhattan B. & M. Co. v. Thompson, 58 id. 80; Gosman, v. Cruger, 69 id. 87; Nash v. Mitchell, supra. In the opinion in the last case Mr. Justice AlleN says: “ The law does not authorize the presumption, and
The propositions which have been discussed are supported by the following authorities: 1 Pars, on Notes and Bills, 78; 2 Kent’s Com. (12th ed.) *164 ; 2 Story’s Eq. Jur., § 1397; 1 Jones on Mort., §§ 106-118; Schouler’s Bom. Kel. 75.
Mr. Jones, in his excellent work on Mortgages, considers the liability of a married woman for a deficiency arising upon a foreclosure of the mortgage upon her property, when the lien thereon may be valid in equity, and her note or personal obligation secured may be void, and observes : “ Of course in such case, when the remedy has been exhausted against the mortgaged estate, there is no further remedy against her. If, for instance, she borrow money upon a mortgage of her real estate for the accommodation of her husband, and it is paid to him, she is under no liability for any deficiency after the application of the property to the repayment of the loan.” § 111. In Stephen v. Beall, 22 Wall. 329, Mr. Justice Hunt passes upon the power of a married woman to charge her separate estate with the payment of her husband’s debts, or any other liability, and concludes that the subjects of discussion by the courts relate to the manner in which she should exercise this right, and (C the requisite evidence .of its due execution.”
In the case at bar, there is nothing upon the face of the note or mortgage, or in the transcript, to show that Mrs. Yantilburg intended to charge her estate with the payment of the note to Black. On the contrary, the real property of her husband was mortgaged for this purpose, and the answer of Black avers that she had no estate at the time that the note and mortgage were executed. If the appellant was then satisfied that Mrs. Yantil-burg had no property in her own right, he could not believe that she intended to render her separate estate liable on account of the note. We entertain no doubt that the entry of the personal and deficiency judgments against Mrs. Yantilburg was erroneous.
What was the effect of the first judgment that was entered against Mrs. Yantilburg? Assuming that the appellant is cor-
Mr. Bishop, in his commentaries on the Law of Married Women, remarks: cc Judicial proceedings, conducted and entered of record in due form, without fraud, bind the parties to them, whether those parties are capable of binding themselves out of court or not. It is so, for example, where an insane person takes a cause into court. In the words of Lord Coke, £ all acts which he doth in a court of record, either concerning his lands or'goods, shall bind himself and all others forever.5 Beverley's case, 4 Co. 123, b. So it is likewise with a woman under coverture.55 Yol. 2, § 386. Mr. Bishop refers to the case of Green v. Branton, 1 Dev. Eq. 500, in which Mr. Justice RuxeiN says: aMarried women are bound by judgments at law as much as other persons, with the single exception of judgments allowed by the fraud of the husband in combination with another.” In Gam-
Some general principles respecting this investigation may be found in the following decisions of the supreme court of the United States. In Elliott v. Peirsol, 1 Pet. 328, Mr. Justice Tbblble says: “ Where a court has jurisdiction, it has a right to decide eveyy question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities.” Chief Justice Mabshall delivered the opinion in Ex parte Watkins, 3 Pet. 193, and said: “ The cases are numerous which decide that the judgments of a court of record having general jurisdiction of the subject, although erroneous, are binding till reversed.” In Voorhees v. U. S. Bank, 10 Pet. 449, it is held that a judgment which remains in force is evidence of the right of a plaintiff to process to execute the judgment, and that the errors of the court in which the judgment has been entered, “however apparent, can be examined only by an appellate power.” It is also held in Cooper v. Reynolds, 10 Wall. 308, and Gunn v. Plant, 94 U. S. 644, that a judgment, which has been duly rendered in a court having jurisdiction, is binding until reversed or set aside, “ no matter how irregular it may be as to matters of form.”
We are, therefore, led by#these authorities to the conclusion that the judgments against Mrs. Vantilburg .were erroneous, but- not void. The failure to plead her coverture, which was a good defense in the action brought by Black against the respondents upon
What was the remedy of Mrs. Yantilburg? She alleges in her complaint that she filed a motion, together with affidavits setting forth the facts that have been alluded to, to vacate the judgments, at a term of the district court succeeding that at which the decree had been entered. The court below overruled the motion. This action was proper upon one ground, if no other. After the adjournment of a term a court loses control over the judgments rendered at such term, unless its jurisdiction is saved by some proceedings instituted within the time allowed by law. Daniels v. Daniels, 12 Nev. 118; Bibend v. Kreutz, 20 Cal. 109 ; DeCastro v. Richardson, 25 id. 49.
Under the statute of this Territory Mrs. Yantilburg had the right to appeal from the original judgment within one year after the entry thereof. She did not resort to this remedy, and, about five months after the expiration of this period, commenced this action. When a party neglects to avail himself of a statutory privilegé that affords him a full, complete and adequate remedy, he cannot obtain relief in an equitable proceeding of this nature. In Drais v. Hogan, supra, it appears that a judgment had been entered regularly against a married woman, upon a contract which she could not make legally, that the complaint was ££ radically defective and wholly insufficient to support that judgment,” and that no appeal had been taken therefrom. The court held that an appeal from the judgment would have terminated in favor of the wife, but that her rights were lost by the failure to appeal within the time limited by the statute. The complainant in Ceath v. Sims, 5 How. (U. S.) 192, sought to be relieved in equity from a judgment entered in a court of law on a promissory note, upon the ground that there was a failure or illegality of the consideration of the note. Mr. Justice DaNiel maintains in the opinion that “ no reason is perceived why such a defense should not have been made or attempted,” and that a court of equity ££ will never be called into activity to remedy the consequences of laches or neglect, or' the want of reasonable diligence. Whenever, there
It is conceded that the court, in which the judgment complained of was entered, had jurisdiction of the subject of the action, and the respondent, William Yantilburg, and we have assumed in these inquiries what the papers in that case show, that jurisdiction had been obtained of Mrs. Yantilburg. It appears therein that a proper summons was served regularly upon her; that she and her husband appeared in court by an attorney who filed a demurrer; that the demurrer was overruled; that no further defense was made; and that the judgment was thereafter duly entered. But Mrs. Yantilburg alleges in the complaint in this action that no summons or other process in the original case was
It is, therefore, ordered and adjudged that the judgment of. the court below be reversed with costs, and that this action be remanded for a new trial in conformity to this opinion.
Judgment reversed.