Tarr v. Friend

Mahan, P. J. This case involves the proper construction of section 2 of chapter 62, being paragraph 3753, of the General Statutes of 1889, in relation to married women. The only question in the case is: Does the old rule that, where the feme covert specially pledges property by way of mortgage for the joint debt of herself and her husband, executing the contract for the repayment jointly, the special setting apart of the mortgaged property raises a presumption that all other of her separate property was excluded and not pledged for such indebtedness, apply under our statute? Our Supreme Court, in the case of Deering v. Boyle (8 Kan. 530), appears to recognize this rule, and says: ‘ ‘Another class of cases is where a married woman at the time she makes the contract appropriates a certain piece of property (either 'hers or her husband’s) for the payment of her obligation, by way of mortgage or pledge or the like. In such cases it has been held that no other property was intended to be appropriated or charged, upon the maxim that the express mention of one thing is the exclusion of an [50] other. Such was the case of Johnson Co. v. Rugg (18 Iowa, 137).” But in the case of Deering v. Boyle the court says that that case does not come within the rule. Again, in Wicks v. Mitchell (9 Kan. 88), where the defendant plead her coverture as a defense to an action upon a contract made jointly with her husband, and where she further averred that she refused at the time of the execution of the notes to charge her separate property, the court says : “ She admits the execution of the notes. Now whether thereby she charged her separate property is a question of law ; for there is no claim in the petitions that she ever executed any mortgage or other instrument specifically appropriating certain property to the payment of these notes.” The allegation that the defendant refused, at the time of the execution of the notes, to charge her separate property may be considered, says the court, as simply an allegation that she refused, by mortgage or otherwise, to make any specific appropriation of any of her separate property to the payment of these notes ; in other words, she did nothing further towards charging her separate property than executing these notes. In the case cited there was a demurrer to the defendant’s answer, which was sustained. Counsel contended that this was error because she specifically alleged that she refused to charge her separate property for the payment of this debt. The court goes on to say: “In this view the question raised by the learned counsel for the plaintiff in error is not in the cases, and they fall within the letter as well as the spirit and reasoning of the rule laid down in Deering v. Boyle,” supra. So the exact question has never been presented to the Supreme Court as to whether, in an action against [51] a married, woman to enforce a contract made by her under the provisions of section 2 of chapter 62, General Statutes of 1889 ( ¶ 3753), they would apply this rule. The language of the section of the statute is : “A married woman, while the marriage relation subsists, may ... . enter into any contract with reference to the same [her real and personal property] in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property.” It seems to have recognized the rule; and yet, in Deering v. Boyle, supra, on the succeeding pages, Mr. Justice Valentine, who delivered the opinion of the court, proceeds with the consideration of this statute and illustrates that the real intention of the statute was to permit a married woman to contract the same as a man, and in doing so to incur the same obligations and penalties that a man would in making a contract; and the language of the statute is sufficiently broad to sustain this latter interpretation and exclude the rule heretofore alluded to. We are inclined to the opinion that the proper construction of the statute would exclude the operation of the rule contended for by the defendant in error. In the case of Lisle v. Cheney (36 Kan. 578), the facts are almost exactly the same as in this case ; however, the precise question was not specifically raised, and the court held, upon the opinion of Commissioner Simpson, that a lien was created for the entire judgment, at the date of its rendition, upon all the property owned by the defendant, a married woman, and upon property thereafter acquired by her. In that case there had been a specific pledge of property by way of mortgage, as in the case under consideration. Section 399 of the Code provides: “In actions to [52] enforce a mortgage, ... a personal judgment or judgments shall be rendered for the amount or amounts due.” Section 419 provides: “Judgments of courts of record . . . shall be liens on the real estate of the debtor, within the county in which the judgment is rendered, from the first day of the term at which the judgment is rendered.” Section 517 of the Code provides : “ When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount, sufficient to satisfy the debt or damages and costs, be not made from the sale of property specified, an execution may issue for the balance, as in other cases.” Considering these provisions of the Code in connection with the Act in relation to married women, in which it says she may enter into any contract with reference to her real and personal property “in the same manner and to the same extent and with like effect as a married man may in relation to his real and personal property,” the conclusion seems to us inevitable, that this judgment became a lien upon the property of Mrs. Wiggins at the time it was rendered, and from the first day of the term of court at which it was rendered, the same as though she had been a married man; and that the language of this statute, taken in connection with the provisions of the Code referred to, excludes all idea of the operation of the rule contended for. If we are correct in this conclusion, the judgment of the District Court is erroneous and ought to be reversed. The judgment is reversed, with direction to the court below to proceed in accordance with this opinion.