Frost v. Parker

Beck, J. I. The defendants are husband and wife. The petition shows that in 1876 a judgment was rendered against the husband, which was subsequently assigned to plaintiff; that the notes upon which the judgment was rendered were executed by the husband for an organ, purchased by both husband and wife for use in their family, and so used, and that its purchase was a part of the family expenses; that, when the suit on the notes was commenced, the husband was the owner of certain land, which he subsequently conveyed to one Bray ton, who immediately conveyed it to the wife; that these conveyances were fraudulent, being made for the purpose of defeating the plaintiff in the collection of his judgment; that, subesquent to the rendition of the judgment, the wife purchased certain village lots, the title of which, as well as the title of the land, she still retains; and that plaintiff has caused an execution to be issued upon the judgment and levied on the land and lots. The petition charges that the conveyances for the land are fraudulent, and prays that they may be so declared, and further prays that the lots may be declared to be subject to plaintiff’s judgment, for the reason that the debt for which it was rendered was contracted for family expenses. It also prays that the judgment be, for the same reason, enforced against the individual property of the wife. Tire purchase of the organ, and the existence of the debt therefor, and the rendition of the judgment, are inferentially admitted in the answer. Other allegations of the petition are denied. As further defense, it is alleged that it was agreed by the vendor of the organ that he would look to the husband alone for payment, and that the wife was not to be liable therefor; that the husband bought the instrument for the purpose of trade, and not for the use of his family, and that it was not so used in the family; that no recovery therefor has been had against the wife; and that recovery against the wife on account of the purchase of the organ is barred by the statute of limitations. [180] 1. PRACTICE ill supreme amended abstract. abstract? leave: notice. [179] II. Counsel for plaintiff object to the consideration of the [180] case, on the ground that the original abstract fails to show that an appeal was taken in the case, or that the XX evidence was taken m writing, pursuant to an order of the court, or that it presents all the evidence. But, by an amendment to appellant’s abstracts, all of these matters are properly shown. The abstract, as amended, is not denied; it must, therefore, be taken as true. This is a sufficient answer to the objection stated. A motion to strike the amended abstract, on the ground that it was filed without leave 01, nofqce) after an agreement that the case should be submitted thereon, is overruled. Neither leave to file, nor notice, was necessary. No agreement is shown which waived defendant’s right to file an amended abstract. III. The district court appears to have held that the wife was not liable for the debt incurred for the organ, and that it cannot be enforced against her property, but that the conveyances of the land under which she claims are fraudulent, as alleged in the petition. Upon this view of the case, a decree was entered, declaring the land subject to plaintiff’s judgment, but holding that it cannot be enforced against the lots. The case is triable here de novo. We are required to determine the rights of the parties upon the record, without regard to the relief granted by the decree of the court below. 1Y. We find it unnecessary to inquire into the good faith and validity of the deeds under which the wife claims title to the land, for the reason that, if it be conceded that they are valid, and that her title is not tainted by fraud, the land, as well as the lots, may in this action be held subject to plaintiff’s judgment. We will proceed to state the grounds of our conclusions upon this branch of the case. 3. husband fámiíyexof organ?8 Y. The organ was purchased by the husband in 1875. The wife was present when the purchase was made, and both she and the husband testify that she informed the seller that she would not be liable for it. Their testimony fails to show an agreement by the seller [181] that he would look alone to the husband for payment. They unite in the statement, which is contradicted by the vendor’s evidence, that the seller replied to her declaration that she would not pay for the instrument, by asserting that the husband’s note was good enough. But this does not amount to proof of an agreement to relieve the wife of liability. It is insisted by defendants that the organ was not purchased by the husband for use in the family, but for the purpose of “speculation;” that is, for sale at a profit. It is shown that the husband did offer to sell the organ. But we conclude that, whatever may have been the husband’s purpose at the time of the purchase, it was devoted to the use of the family. It was used by one of the daughters, who received instruction to some extent in the use of the instrument, and became able to play a little. Yisitors used it. It was kept as any other article of family use from the time of its purchase, in 1875, to the day the testimony was taken, about seven years. Surely it cannot be regarded as an instrument kept for sale. We have held that the purchase of a piano for use in the family is a family expense, which may be charged against the property of the wife. Smedley v. Felt, 41 Iowa, 588. An organ comes under the same rule. same: juflghusbamiamst meni'of ;Ssubwffe’spropYI. It is urged by defendants that, as the wife was not a party to the case in which the judgment was entered, and no judgment has been rendered against her for the P^ee of the organ, and, as the judgment alone, and not the claim or cause of action upon which it was rendered, was assigned to plaintiff, he cannot recover fin this action. We will briefly consider these objections. Code, § 2214, provides that “the expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately.” Here a right is created and a liability declared, but no remedy is provided or pointed out. The right declared is that the creditor of the husband or wife, for [182] family expenses, may have a remedy against both. The liability created is that both shall be liable for family expenses. The remedy to enforce the provision is not pointed out, further than that the indebtedness contemplated by the provision may be “ chargeable upon the property of both husband and wife.” Tt has been held that under this provision each is personally liable. Smedley v. Felt, 41 Iowa, 588; Lawrence v. Sinnamon, 24 Id., 80; Finn v. Rose, 12 Id., 565; Jones v. Glass, 48 Id., 345; Farrer v. Emery, 52 Iowa, 725. But it cannot be held that the remedy under this provision is limited alone to a personal judgment, and that, by proper proceedings, the property of the wife may not be purstted without the claim for a personal judgment against her. This is precisely what plaintiff seeks to do in this case. No prejudice results to the wife by seeking to enforce the debt against her property without asking a personal judgment against her. The statute, in declaring that her property shall be charged, clearly implies that a remedy against it is contemplated. VII. The action cannot be defeated on the ground that no assignment of the claim against the wife is shown. The wife was not a party to the original contract, nor to the note. She was not a party to the action whereon the judgment was rendered. The evidence of the debt was changed from an oral contract to a note, and from the note to the judgment. The debt all the time continued the same. This debt was continually enforceable against the wife’s property. Her liability followed the debt. An assignment of the claim as against her, therefore, is not necessary to authorize plaintiff’ to bring this action. See Lawrence v. Sinnamon, supra. same: statute oí limitations. YIII. Eegarding the liability of the wife as secondary, in a sense, as following the debt-, it continues as long as a right a°Oon exists against the husband. He^may cpailge the form of the evidence of the debt, so that the statute of limitations will not bar recovery; the [183] debt, enforceable at law, continues, and with it the wife’s .liability. Lawrence v. Sinnamon, supra. 4. appeal to court “trial rights of party not appealing. IX. The plaintiff does not appeal, and does not complain of the decree of the court below. Tie must be regarded as being satisfied with it. Had he appealed, he would have been entitled to a decree subjecting to his iudgriient both the land and the lots. But, jo ... as ¿oes not appeal, we cannot give him relief subjecting to his judgment property which was discharged by the decree of the court below, of which he does not complain. Affirmed.