Booth Mercantile Co. v. Murphy

AILSHIE, C. J. This action was instituted to foreclose •a mortgage on certain real estate situated at Pocatello, Idaho. The note and mortgage were executed on May 29, 1903, at "West Jordan, Salt Lake county, Utah, by the defendant, Mrs. Julia Murphy. The defendant, Mrs. Murphy, who was then residing in Utah, purchased from the plaintiff some furniture, fixtures and supplies for the purpose of running and conducting a hotel business, and executed the note and mortgage in question in payment of the purchase price. At the time of •entering into this contract, Mrs. Murphy was the wife of Timothy Murphy. She had, however, previously been married to Michael D. Griffin. At the time of the death of Griffin, her first husband, they were living at Pocatello, in this •state. An administration was thereafter had on the Griffin estate, and upon the return of the inventory it appeared that the estate was of less value than $1,500, and the court, after due notice, in pursuance of sec. 5445, Rev. Stat., proceeded to and did make an order in due and regular form setting aside the entire estate, including the real property covered by the mortgage in question, for the use and benefit of the widow and minor children. At that time the family consisted of the widow, Mrs. Griffin, and her seven minor children. The proceedings in setting aside this estate appear to have been regular and in conformity with the statute and are not questioned in this case. The widow Griffin thereafter married Murphy, and early in the year of 1903 they moved to Utah, where Murphy engaged in railroad work, while Mrs. Murphy conducted.the hotel business. Mrs. Murphy and the minor ■children contested the foreclosure of this mortgage upon sundry grounds, and obtained a judgment in their favor, refusing the plaintiff any relief whatever either upon the promissory note or the mortgage executed as security therefor. The plaintiff has appealed and assigns numerous errors which — 216 — are argued in the brief under five general heads. In the-first place, it is contended that the contract was a Utah contract and that under the statutes of that state (see. 1199, Rev-Stat. of 1898) a married woman may contract in all respects, as if she were a feme sole. Second, it is insisted that the finding of the court that the residence of Mrs. Murphy was-in Idaho instead of in Utah is erroneous and contrary to the evidence. Third, that the evidence in the case shows clearly and without contradiction that the debt was contracted for the use and benefit of Mrs. Murphy and concerning her separate-estate, and that the finding of the court that it was in fact-not for her use or benefit or with reference to her separate-estate is wholly unsupported by the evidence. Fourth, that-the evidence shows that the mortgage was duly and properly acknowledged, and was entitled to be so certified, and that the finding of the court that it was not duly and properly acknowledged was contrary to the evidence and erroneous. Fifth, that Mrs. Murphy had a mortgagable interest in the property covered by the mortgage, and that the court erred in holding otherwise. As we view this case, it is immaterial for the purpose of this decision whether the contract was a Utah or an Idaho contract, and it is likewise immaterial whether Mrs. Murphy wasr as a matter of law, at the time of entering into the contract, domiciled in Utah or Idaho. The contract was her own debt,, incurred for her use and benefit. She received the consideration therefor, the goods and merchandise for which the note and mortgage were executed. Not only that, but the purchase price was secured by a contract with direct reference to her separate estate, namely, a mortgage executed by her on. her separate property. (Bank of Commerce v. Baldwin, ante,, p. 75, 93 Pac. 504.) It has been uniformly held by this court, that a.married woman could bind her separate estate by a contract executed in this manner. (Dernham v. Rowley, 4 Ida. 753, 44 Pac. 643; Jaeckel v. Pease, 6 Ida. 131, 53 Pac. 399; Strode v. Miller, 7 Ida. 16, 59 Pac. 893; Holt v. Gridley, 7 Ida. 416, 63 Pac. 188; Bank of Commerce v. Baldwin, 12 Ida. 202, 85 Pac. 297; Bank of Commerce v. Baldwin, supra.) — 217 — The fact that the property purchased may have inured to the benefit of the whole family, or, rather, of the community, does not make it any less her own individual contract, nor does it do away with the fact that she received the goods for which the contract was made. In a sense, it would be difficult to name a contract a married woman might make that would not in some respects inure to the benefit of the community, but that fact alone does not lessen her obligation thereon. (Edminston v. Smith, 13 Ida. 645, 121 Am. St. Rep. 294, 92 Pac. 842.) The acknowledgment to the mortgage is as follows: “State of Utah, County of Salt Lake, — ss. “On the fourth day of June, A. D. nineteen hundred and three, personally appeared before me, Mrs. Julia Murphy and the Booth Mercantile Co. (R. L. Booth, Gen. Manager.) The signers of the above instrument, who duly acknowledged to me that she executed the same. “EUGENE P. WHEELON, “Notary Public. “My commission expires April 27, 1903.” This acknowledgment was taken prior to the amendment of sec. 2960, Rev. Stat., and is not in conformity with the requirements of that section, in that it does not show that the acknowledgment was taken without the hearing of the husband and that the woman was made acquainted with the contents of the instrument. The plaintiff in its complaint alleged that the acknowledgment was duly and regularly taken, but that the certificate was imperfect and not in proper form, and prayed that the same be corrected and amended so as to comply with the statute. There is no substantial conflict in the evidence as to what occurred at the time of the execution of this mortgage. In substance it is as follows: After the deal had been made, the papers were drawn and were taken by one of the employees of the plaintiff company to Mrs. Murphy at her place of business, and she read them over and signed the note there and either signed the mortgage at that — 218 — time or later on in the office of the company. On this latter fact there is some uncertainty. At any rate, the notary went into the office where there were two or three persons present and read the mortgage to Mrs. Murphy and asked her if the .signature was hers. She told him it was; that she knew the contents of the instrument, and that it was a mortgage on ;some property she had in Pocatello, and that it was given as security for the note she had just executed. She testified that she knew its contents and all about it and that she executed it. The husband was not present during any of these transactions, and was not present at the 'time the mortgage was executed and the acknowledgment taken. Now, it is "true that the notary was not aware of the requirements of the Idaho statute with reference to acknowledgments of married women, and did not take this acknowledgment with any view to a compliance with the Idaho statute, and that evidently accounts for the certificate being in the form as above set out. It would be immaterial, however, whether he actually knew what the Idaho statute was or not, if the acknowledgment had been properly taken and he had attached a proper •certificate. He failed, however, to attach a proper certificate, for the reason that he was not aware of the provisions of our -statute. It does quite clearly appear to us, on the other hand, that the acknowledgment was taken in substantial compliance with our statute. The woman was made acquainted with the contents of the instrument,- she already, in fact, knew its contents and the nature of the transaction; it was her transáction; it was taken in the absence of her husband ..and without any coercion or compulsion on his part. (First Nat. Bank of Hailey v. Glenn, 10 Ida. 224, 109 Am. St. Rep. 204, 77 Pac. 623.) It satisfactorily appears to us that the -facts existed upon which- the notary could have attached -a proper certificate of acknowledgment. Where such facts ^already exist, and it is shown that the acknowledgment was proper, the certificate should be so reformed as to conform with the statute, and it was error to refuse a reformation of rthe acknowledgment so as to entitle the mortgage to be fore — 219 — •closed in this case. (Sec. 2971, Rev. Stat.; Bunnell & Eno. Inv. Co. v. Curtis, 5 Ida. 652, 51 Pac. 767.) This brings us to the last question presented: Did Mrs. Murphy have a mortgagable interest in the property covered by the mortgage? As previously stated, this property had been set aside by a decree of the probate court for the use of the widow and her minor children. The interest the wife acquired under this decree is a separate and distinct interest from that which she had as an heir to the estate. By such •a decree, the property was set aside as an entirety for the .use of the family of the deceased as a whole. The wife could do no act that would relieve this property of its burden or free it from the obligation and purposes to which it was set aside until the children had reached their majority. This proposition is very clearly set forth in Estate of Moore, 57 Cal. 437, .and in Phelan v. Smith, 100 Cal. 158, 34 Pac. 667. On the other hand, Mrs. Murphy had a vested interest in this estate which will or may at some time become available to her under the laws of succession, and by reason of her being an heir to her deceased husband’s estate. There can be no question as to her right to alienate or encumber that interest. .Such alienation or encumbrance is subject, however, to the superior and paramount right conferred by the decree of the probate court, and will confer no rights and grant no privileges that she did not possess herself by reason of being an heir to the estate, as distinguished from her duties as the widow and member of the family of her deceased husband and head of such family after the death of her husband. (Phelan v. Smith, supra.) "We are not called upon in this case to determine what •rights the mortgagee may acquire in the mortgaged property hy the foreclosure sale, or when, in the course of time, the purchaser at such sale may be able to realize or enjoy any of the fruits of, or benefits from, his purchase. We content ourselves by simply holding that Mrs. Murphy, as the heir .of her deceased husband, acquired such a right in this property, under the law of succession, as she could alienate or ¡encumber. For the foregoing reasons, the judgment must be — 220 — reversed, and it is so ordered and a new trial granted. The cause is remanded with costs in favor of the appellant. (February 18, 1908.) Sullivan, J., and Stewart, J., concur.