56 Neb. 63 | Neb. | 1898
Westervelt, as receiver of the Citizens National Bank of Grand Island brought this suit in the district court of Hall county against A. H. Baker and Mary J. Baker, his wife, upon two promissory notes executed and delivered by them to said bank. Mrs. Baker interposed as a defense to the action of the receiver that at the date of the execution of said notes she was a married woman —the wife of A.' II. Baker—and signed the notes sued upon as surety for her husband; that she did not receive, directly or indirectly, any portion of the consideration for which said notes were given; that they were not given with.reference to her separate property, trade, or business', or upon the faith and credit thereof, nor with intent on her part to thereby charge her separate estate with their payment. Mrs. Baker had a verdict and judgment for the review of which the receiver has filed here a petition in error.
1. The first argument is that the finding of the jury sustaining Mrs. Baker’s defense, aside from the fact of her being a feme covert, is not sustained by sufficienc evidence. We think it is.
3. The third contention of the receiver consists of a very able and exhaustive argument assailing the correctness of the construction placed by this court upon chapter '53, Compiled Statutes, commonly known as the “Married Woman’s Act.” This construction amounts to this: That the signing of a promissory note by a married woman does not raise the presumption that she intended thereby to render her separate estate liable for its payment, nor that the note was given with reference to her,separate property, trade, or business, or upon the faith and credit thereof, and that to an action upon such note coverture is a complete defense, unless the plaintiff shall establish by a preponderance of the evidence that the note was made with reference to, or upon the faith and credit of, the wife’s separate estate or business, or with an intention on her part to charge her separate estate with its payment. In the brief filed by counsel for the receiver cases are cited from other courts which place a different construction upon similar statutes. We have read and examined these cases heretofore, and have again studied them, and still we feel that our construction of the, statute is correct. The court is divided as to the proper construction of this statute. It has several times been given the most careful consideration of which we are capable, and in Grand Island Banking Co. v. Wright, 53 Neb. 574, will be found the views of the majority of the court, sustaining the construction which it has placed upon the statute, and the views of the members of the court who dissent from that construction.
The judgment of the district court is
Affirmed.