Reis v. Lawrence

Ross, J. The defendant, Edwin A. Lawrence, is the father [132] of the defendant Fannie P. Lawrence. The latter married one Hiram Hutchinson, in the city of San Francisco, on the 13th of April, 1871. In the year 1873 she went to the Territory of Utah for the purpose of obtaining a divorce from her husband, and on the 6th of May of that year filed in the Probate Court of Salt Lake County, Utah Territory, a petition in which she set forth that Hutchinson deserted and abandoned her on or about the first day of March, 1872, and had ever since continued his desertion and abandonment of her, and praying for a decree of divorce dissolving the bonds of matrimony existing between them. On the 15th of July, 1873, the court in which the proceeding was had entered a decree purporting to dissolve the bonds of matrimony existing between Mr. and Mrs. Hutchinson, and restoring to the petitioner her maiden name. From the view we take of the case before us it will not be necessary to determine whether or not the decree of the Probate Court of Utah was validated by subsequent congressional action. Upon the entry of the decree on the 15th of July, 1873, Mrs. Hutchinson resumed her maiden name, and never after-wards lived with Hutchinson, but has ever since that date lived and acted as a single woman, and borne her maiden name. On the 26th of May, 1874, she ivas the owner of a certain piece of land situated in Alameda County of this State, which was her separate property, it having been given to her by her father on the occasion of her marriage. On the day last named she signed a power of attorney, very general in its terms, appointing her father her attorney in fact to (among other things) “lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate” her said land upon such terms and conditions, and under such covenants as to him should seem fit. The power as well as the certificate of acknowledgment described the constituent as “Fannie P. Lawrence, formerly Fannie L. Hutchinson,” and the power was so signed. The certificate, however, did not conform to the requirements of our statute prescribing the form for certificates of acknowledgment of married women. When the power of attorney, so signed and acknowledged, was received by Edwin A. Lawrence, the latter was the owner of various certificates of purchase issued by the State of Califor [133] nia for State lands, on which Gustave Reis held a mortgage executed to him by Lawrence. A part of the purchase-money of the lands had been paid, but a part of it remained unpaid. In due course of time an instalment became due. Lawrence needed the money with which to make the payment. He negotiated with Mr. E. B. Mastick for the loan of the required amount on a mortgage he proposed to give on his daughter’s land under and by virtue of the power of attorney. The power, the daughter testified on the trial of this case, she signed unwillingly and only after urgent solicitation on the part of her fatherj and in answer to the question “Why did your father urge you to execute the power of attorney to which you have referred?” she answered: “ Because he said he had payments to make on certain lands of his, and that in case of necessity he wished to raise enough money on my property to meet that demand; but that he hardly thought he would be obliged to do so ■, but he wished to have the paper °on hand, so in case of need he could make use of it.” In endeavoring to obtain money on the strength of his daughter’s land, Edwin A. Lawrence was, therefore, but carrying out the purpose had in view by both when the daughter gave him the power. His negotiations with Mr. Mastick for a loan of the required money failed of accomplishment on the last day allowed for the payment of the instalment due upon the certificates of purchase. In this extremity he applied to Gustave Reis for the loan of the amount necessary to make the payment, viz., $4,550. Gustave furnished a part of the money, but got the greater part of it from Ferdinand Reis, who is the plaintiff in this action. The loan was accordingly made, and as security for its payment Edwin A. Lawrence executed to the plaintiff Reis a deed for the Alameda land as attorney in fact for Fannie P. Lawrence. At the time of this transaction, which took place on the 27th of June, 1874, Edwin A. Lawrence represented to Reis that his daughter had obtained a divorce from her husband in Salt Lake, and had been restored to her maiden name. Subsequently, to wit, on the 18th of September, 1874, upon application made on behalf of the plaintiff, Fannie P. Lawrence, executed to plaintiff a deed for the same land described in the deed already executed to him by her father as her attorney in [134] fact, which deed expressed a consideration of $4,500, and contained the clause: “ This deed is given in confirmation of the deed given by me to said Reis on June 27,1874, by my attorney in fact, hereby ratifying and confirming the same.” The certificate of acknowledgment to this confirmatory deed described the grantor as “Fannie P. Lawrence (femme salé),” and complied with the requirements of the statute prescribing the form of such certificates for others than married women, but did not conform to those in respect to the latter. The case further shows that in the month of July, 1877, Hutchinson commenced an action in the District Court of Marin County of this State against the defendant Fannie for the purpose of obtaining a decree dissolving the bonds of matrimony alleged to have existed between them since the 13th of April, 1871, on the ground that the defendant therein, on or about the 1st of July, 1872, deserted the plaintiff in that action, and from that túne forth lived apart from him, and denied him all marital rights. After trial the court in which the action was brought decreed the plaintiff a divorce on the ground stated in his complaint. We assume that the Utah decree was invalid. Nevertheless the fact remains that upon the rendition of that decree the defendant, Fannie P. Lawrence, resumed her maiden name, and thence hitherto continued to act and represent herself as a femme sole. As such she signed and acknowledged the power of attorney to her father for the purpose of enabling him to borrow money on the strength of her land. On the security of that land, and on those representations, the father did borrow money, and to secure its repayment executed to the lender, pursuant to the power, a deed for the premises. Subsequently, and in consideration of that loan, the daughter, still acting and representing herself as a femme sole, executed as such to the lender another deed for the premises, in which she recited that it was given in confirmation of the deed previously executed by her attorney in fact. At this day she seeks to avoid the effect of these conveyances to the injury of the party who parted with his money on the strength of her actions and representations by saying that she was all along a married woman, and that the certificates of acknowledgment to the instruments executed by her were not in [135] accordance with the form prescribed by statute for married women in that they did not recite that she was examined “without the hearing of her husband,” a husband who, according to her petition for divorce filed in Utah, had deserted and abandoned her on the 1st day of March, 1872, and whom, according to the record put in evidence from the District Court of Marin County, she had deserted and abandoned in July of the same year, and between whom no marital relations other than the dry, legal relation in fact existed. Of course, under such circumstances the reason for the rule that requires, in cases of married women, the certificate of acknowledgment to recite an examination without the hearing of the husband, does not exist. At least as early as July, 1872, the defendant Fannie lived apart from, and independent of her husband. Later on, in 1873, she resumed her maiden name, and thence hitherto acted and represented herself as a single woman. In that character she executed the instruments in question, and in that character, in our opinion, a court of equity ought to regard her in the construction of them. (As giving support to these views, see Richeson v. Simmons, 47 Mo. 20; Rosenthal v. Mayhugh, 33 Ohio St. 155; Patterson v. Lawrence, 90 Ill. 174.) . We find it unnecessary to determine whether the rules based on the common law relation of husband and wife are to be applied to their full extent in this State, where the wife is now by statute empowered to dispose of her separate estate without the consent or concurrence of her husband. It follows that the plaintiff is entitled to the lien prayed for. Judgment and order reversed, and cause remanded for a new trial. Morrison, C. J., Sharpstein, J., and Myrick, J., concurred.