Marlow v. Barlew

By the Court, Rhodes, J.: Action to foreclose a mortgage of real estate. On the 3rd day of July, 1874, John Hansen and Hannah Hansen, being the owners, as husband and wife, of certain community property, including the mortgaged premises in controversy, united in the execution of a deed purporting to convey all their community property to William Nelson, in trust, to the effect that he should convey to John Hansen a certain portion of the community property, including the mortgaged premises, to hold as his separate property, and also that he should convey to Hannah Hansen the remaining portion of the community property, to hold as her separate property. Nelson thereupon, and in pursuance of the deed of trust, executed deeds, whereby he purported to convey to the respective parties the portion of the community property to which each was entitled, according to the terms of the deed of trust. Hannah Hansen also executed a deed purporting to convey the mortgaged premises to John Hansen, her husband, as his separate property; and thereafter he devised the same to Ellen E. Barlew, one of the defendants, who afterwards executed the promissory note, deed, and mortgage in suit. It is alleged in the complaint that Hannah Hansen claims that the above mentioned deeds were ineffectual to vest the title to the mortgaged premises in John Hansen in severalty, and that she is the owner of the undivided half thereof. The note and mortgage in suit were executed by Ellen E. Barlew alone; but her husband is made a defendant, and also Hannah Hansen. The defendants severally filed general demurrers to the complaint. The demurrers were overruled, and the plaintiff had judgment against Ellen E. Barlew for the amount due upon the note ; and it was also ordered that the mortgaged premises be sold for the satisfaction of the amount due, and if there should be a deficiency after the sale, that a judgment therefor be docketed against her. It was also adjudged, in the usual form, that the defendants claiming, etc., subsequent to the mortgage, be forever barred and foreclosed, etc.

Can a married woman make a promissory note and secure its payment by the execution of a mortgage of her separate real [459]estate ? It is provided by sec. 158 of the Civil Code that “either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried.” The words, “ any engagement or transaction respecting property ” are sufficiently comprehensive to include a promissory note or mortgage; they may not be the most apt to express the legislative intent, but there is no room for doubt that it was the intent to give married women the same power and capacity to contract that an unmarried woman possesses, subject to certain limitations and restrictions mentioned in the Code. Previous to the adoption of the Code, she could mortgage her real estate, provided the husband united in its execution, but under the Code his signature is unnecessary. She was deprived of the capacity to make a contract for the payment of money by sec. 167 of the Code as" first adopted; but the section was repealed in 1874. The limitations and restrictions upon her capacity to contract, and the special provisions respecting the mode in which she was required to contract, as provided by the laws formerly in force, were designed not only for her protection in dealing with third "persons, but also for her security against the improvidence, coercion, undue influence, or fraud of her husband. But the Code has abrogated almost all of those limitations and restrictions, and has relieved her from the disabilities under which she formerly labored, and in respect to her property and contracts has taken away the sort of supervision or control which the husband formerly exercised. The rents, issues, and profits of her separate property become her separate property; and she may “ convey her separate property ” without the consent of her husband. (Sec. 162.) Her earnings are her separate property. (Secs. 168 and 169.) She and her husband may hold property as joint tenants, tenants in common, or as community property. (Sec. 161.) They may “ alter their legal relations ” as to property, and may, in writing, agree to an “ immediate separation, and may make provision for the support of either of them and of their children during such separation.” (Sec. 159.) The property in respect to which they may “ alter their legal relations ” would seem to include property held by them,