Nelson v. Miller

Campbell, J., delivered the opinion of the court. The record of this case shows numerous irregularities and errors, for which the decree must be reversed. None of the non-resident defendants were made parties according to law. The affidavit for obtaining the order of publication was “ filed ” '26th of October, 1869. No order of publication appears in •the record except as contained in the proof of publication, and that order appears to have been made oil the 27th of October. .Publication was begun on the 30th of October, and ended on the 20th of November. The court commenced- its term on the 22d of November. There were not four weeks between the date of the first publication and the day when the parties '.were required to appear. The court proceeded to final decree without having rendered -a pro confesso against some parties defendant. No guardian ad litem was appointed for Mary Nelson, an infant. Ida E: [413] Petway, who married Mr. McNeilly after suit brought, was not named in the bill as a defendant, though served,with process. The demurrer was properly overruled. As the other errors render it necessary to reverse the decree, we forbear to do more in reference to the only remaining cause of error assigned than to announce the principles of law which should guide in the trial of this case. A married woman cannot execute a valid promissory note, except in the course of her trade and business as engaged in by her under § 1780, Code. Though she gives a note, if it can be shown that it was given for what she may by law contract for and charge her separate estate with liability for, a recovery may be had- against her separate estate by showing the consideration. In other words, if she is legally indebted in the transaction in which she gives her note, it is not a barrier to the enforcement of her legal liability. But if the transaction out of which the note arises does not furnish a legal charge against the wife’s separate estate, her execution of a promissory note jointly with her husband, or separately, does not impose any liability on her. When the transaction is such as to constitute a valid claim against the wife’s estate, her conveyance of her separate estate, joined in by the husband, and properly acknowledged as a security for her debt, is a 'charge on the corpus of her estate, and it may be subjected according to the conveyance. But when the transabtion doés not impose any legal liability on her estate as a debt incurred by her, and she joins her husband in a conveyance to secure his note or the joint note of herself and husband, it is in such case but the debt of the husband, and only “ her income ” can be subjected. A complainant does not entitle himself to a decree to subject the wife’s estate by-exhibiting a promissory'note signed by her and husband. As against her, that, unassailed, entitles complainant to subject “ her income,” but to warrant a decree for the sale of the estate it must appear satisfactorily in the cause [414] that the transaction constituted a legal liability of the wife’s •separate property. Whether the right of the creditor holding a conveyance or incumbrance of the wife’s separate property, for the separate ■debt of the husband, to have her income applied to this demand terminates at her death, has not been decided in this state, but, as Mrs. Nelson has died, if it shall appear in the progress of ■this cause that the transaction out of which sprung the notes and deed of trust involved in this controversy did not impose •any legal liability on Mrs. Nelson, but constituted the separate •debt of her husband, the question of the right of the creditor to subject the income of the estate embraced in the deed of trust, after her death, will be a legitimate subject of investigation and decision. The decree is reversed and the decree pro confesso set aside, .and the cause remanded for complainant to make all necessary parties defendant by proper proceedings.