Luning v. Brady

Field, J., delivered the opinion of the Court Terry, C. J., concurring.

By the common law, a married woman can not hind herself by contract; and the statute of this State has not changed the law in this respect, except in certain particular cases. The joint and several promissory note of the defendant Brady, and his wife, was only obligatory as the individual contract of the husband. (Rowe v. Kohle, 4 Cal. Rep., 285.)

The discharge of Brady, by a decree under the Insolvent Act, from the payment of the note, did not release the lien of the mortgage executed to secure its payment. The discharge only operated to limit the recovery of the plaintiff to the proceeds of the mortgaged premises. (Insolvent Act, § 36.)

The defendant Gilson claiming an interest in the premises, subsequent to the mortgage, was properly made a party, but could not be subjected to the costs of the foreclosure beyond those occasioned by his own separate defence.

It follows that the decree is erroneous in adjudging a recovery against the defendant Josephine for the principal and interest of the note; and in directing execution for any deficiency which might remain after the application of the proceeds of sale of the mortgaged premises; and in awarding costs against the defendant Gilson, and must be modified, in these respects, at the cost of respondent.

Ordered accordingly.