Beckman v. Stanley

By the Court, Belknap, J.: This action is brought to foreclose a mortgage executed by the appellant in October, 1867. The answer avers that [260] at the time of making the mortgage the defendant was a married Avoman. The cause was tried by the judge by whom the following facts were found: “That said defendant was married to one Stanley on the 25th day of January, A. d. 1858, at Sacramento, State of California; that said Stanley left the United States and abandoned the defendant more than nine years ago, and has never since returned to the United States, nor has defendant seen said Stanley for more than nine years, nor has said Stanley ever been in Nevada. “ That defendant for eight years and more last past has resided in Virginia, Storey County, Nevada, and during all that time has been there engaged in the business of keeping and carrying on in her own name as a single woman, a boarding and lodging-house and brothel, and that she has purchased supplies therefor sometimes on credit and sometimes for cash and conducted all the business, including payment of bills, in her own name — the said Stanley not-being in any way known or connected with any of said business or having any interest therein, or his existence or marriage with defendant known in or by the community where defendant has resided for the last eight years. “That during the last nine years said Stanley has contributed something by way of remittances of money to the defendant for her support, but how much was not proven; and it was not found nor was it proven that the fact was known to any one but defendant; and that she has during said period received frequent letters from said Stanley.” The facts alleged in the complaint were also found. Judgment was entered for plaintiff, and from the judgment and an order denying a new trial this appeal is taken. The exception to the common law disability of a married woman to contract or maintain a suit in case of abandonment by her husband has been recognized so frequently that it may be considered established. But the abandonment must be absolute and embrace a total renunciation of marital relations. In such cases courts have treated the deserted wife in all respects as a feme sole, allowed her to contract, [261] sue and. be sued, and to alienate.lands without her husband. Upon this theory respondent relies to sustain the judgment. But the fact that the husband has contributed to the support of the defendant and frequently communicated with her, negatives that complete abandonment which the law requires before it will treat a married woman as a feme sole. In our view of this case, however, the question of abandonment is immaterial to the validity of the mortgage. The right of married women to alienate land in this State, whether their separate estate or community property, does not depend -upon the common law, but upon our statutes. Section 6 of the act defining the rights of husbánd and wife (Stats. 186N5, p. 239) provides: “The husband shall have the management and control of the separate property of the wife during the continuance of the marriage; but no alienation, sale or conveyance of the real property of the wife, or any part thereof, or any right, title or interest therein, and no contract for the alienation, sale or conveyance of the same, or any part thereof, and no lien or incumbrance thereon, shall be valid for any purpose unless the same be made by an instrument in writing, executed by the husband and wife, and acknowledged by her as provided for in the acts concerning conveyances in case of the conveyance of her separate real estate.” And section 9: “ The husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate.” These sections are prohibitory; and any alienation of land by a married woman must be in the mode therein prescribed. In Rhea v. Phenner there was a voluntary abandonment of the wife by the husband without having furnished her with the means of support. In his absence the wife acquired title to certain real estate, and when he had been beyond seas five years she executed a conveyance thereof. The court admitting the doctrine that a feme covert abandoned by her husband may contract debts as a feme sole, said: “But by the laws of Maryland, which must govern in this case, a married woman cannot dispose of real property without the [262] consent of her husband; nor can she execute a good and valid deed to pass real estate unless he shall join her in the deed. The separate examination and other solemnities required by law are indispensable and must not be omitted. ” The deed was declared inoperative and void. 1 Peters, 106. So in California, under a statute identical with ours, the court said: “The fact of the abandonment of the wife by her husband or his suffering her to act as a feme sole as stated in the bill, if such were the facts — whatever the effect of this may have been to render her personally liable for her contracts — neither gave her a right to bind his real property or her own by mortgage; and this seems to be an answer to the whole of the plaintiff’s case. The legislature had a right to say how this sort of property should be bound, and it has, in effect, said that it should not be bound in this way.” Harrison v. Brown, 16 Cal. 288. The case at bar comes directly within the rule adopted by the supreme court of the United States .in the first of Peters, and by the supreme court of the State of California; and we have been unable to find any authority to the contrary. The judgment and order of the district court are reversed and cause remanded.