Marlow v. Barlew

Citation Codes

Equivalent Citations

citation codes

Docket Number

5907

Attorney(S)

E. M. Gibson, for Appellants. S. F. Lieb, for Respondent.

See more information ...

Smart Summary

Factual and Procedural Background

The case arises from an action to foreclose a mortgage on real estate. John and Ellen Barlew were husband and wife, and Ellen executed and delivered a promissory note on February 3, 1877, secured by a mortgage on the property. Hannah Jansen was made a party to the suit, claiming an interest in the mortgaged premises. The property originally belonged to John Hansen and Hannah Hansen as community property. Through a deed of trust, the property was divided into separate portions for John and Hannah Hansen. Hannah Hansen executed a deed conveying the mortgaged premises to John Hansen as his separate property, which he later devised to Ellen E. Barlew, who executed the promissory note and mortgage in suit. The defendants filed general demurrers which were overruled. The trial court rendered judgment against Ellen Barlew for the amount due on the note, ordered the mortgaged premises sold, and allowed for a deficiency judgment against her if the sale did not satisfy the debt. Defendants claiming interests subsequent to the mortgage were barred and foreclosed.

Legal Issues Presented

Whether a married woman can make a promissory note and secure its payment by a mortgage of her separate real estate without her husband's signature.
Whether a married woman is personally liable to a general money judgment on such a note, including a deficiency judgment after foreclosure.
Whether the husband and wife can vest title of portions of community property in severalty by deeds through a trustee or directly to each other.

Arguments of the Parties

Appellants' Arguments

A married woman cannot make a valid promissory note without her husband's signature that would authorize a general money judgment against her.
The Legislature did not intend to depart from the common law rule that a wife cannot bind herself personally where she has no separate estate or property.
Prior to the Codes, no personal judgment could be rendered against a wife. The Codes allow the wife to contract only "respecting property," which does not include an unsecured personal promise.
The husband's influence could coerce the wife into signing notes disposing of her property without proper acknowledgment, rendering deficiency judgments unauthorized.

Respondent's Arguments

A married woman can make a note and mortgage on her separate property without her husband's signature.
She can make a contract for payment of money unsecured by her husband’s signature, and a general judgment can be rendered against her, enforceable only against her separate property.
Accordingly, the judgment for the deficiency was proper and justified.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Miller v. Newton, 23 Cal. 555	Common law rule that no personal judgment could be rendered against a married woman.	Cited by appellants to argue against the validity of a personal judgment on a note executed by a married woman without husband's signature.
Terry v. Hammond, 47 Cal. 35	Indication that the common law rule limiting a married woman’s contractual capacity persists post-Code adoption.	Referenced to support appellants’ argument about restrictions on a wife’s personal liability.
Wilson v. Wilson, 36 Cal. 447	A wife may maintain an action against her husband on a promissory note made before marriage.	Used by the court to illustrate removal of coverture disabilities and to support the wife’s capacity to contract.
Parry v. Kelly, 52 Cal. 334	A married woman is competent to execute a mortgage as a femme sole; mortgage of community property is not void in the extreme sense.	Affirmed the court’s conclusion that the wife had capacity to execute the mortgage and that it was binding.
Hitchcock v. Clark, No. 4810, Oct. Term, 1875	In foreclosure actions, adverse title claims cannot be litigated.	Explained why the court did not decide the issue of title claimed by Hannah Hansen in this foreclosure case.

Court's Reasoning and Analysis

The court analyzed the capacity of a married woman to execute a promissory note and mortgage on her separate real estate without her husband's signature under the California Civil Code. Section 158 grants either spouse the power to engage in transactions respecting property as if unmarried, which the court interpreted broadly to include promissory notes and mortgages. The court noted that prior to the Code, the husband’s signature was necessary, but the Code removed many disabilities of coverture, allowing the wife to hold, convey, and encumber separate property independently.

The court recognized that while the wife’s capacity to contract was previously limited, the Code abrogated most restrictions, and the wife’s separate property is liable for her debts. The court distinguished contracts that are personal promises unsecured by property, clarifying that a general money judgment can be rendered against the wife but enforceable only against her separate property.

The court declined to decide the question of whether the husband and wife could vest title of community property in severalty by deeds through a trustee or directly, as the foreclosure action was not the proper forum to litigate adverse title claims.

Ultimately, the court found that Ellen E. Barlew had the legal capacity to execute the note and mortgage, that these instruments were binding on her and her interest in the mortgaged property, and that the judgment including the deficiency was proper.

Holding and Implications

Judgment affirmed.

The court held that a married woman has the capacity under California law to execute a promissory note and mortgage on her separate real property without her husband's signature, and that she may be held personally liable to a general money judgment enforceable against her separate property, including deficiency judgments after foreclosure. The decision directly affirms the trial court's foreclosure judgment against Ellen Barlew and confirms her personal liability on the note. No new precedent was set beyond affirming the application of existing statutory provisions and case law concerning married women's contractual capacity and liability.

Show full summary ...

RICHARD D. MARLOW v. ELLEN E. BARLEW, JOHN M. BARLEW, and HANNAH JANSEN

Can a wife make a note and mortgage on her separate property without her husband's signature?

It is clear she can. If unmarried, no one would doubt her power in that respect. And under our statute her power is just as broad and full when married as when unmarried. ( Civil Code, sec. 158.)

Can she make a valid note, unsecured, upon which a general judgment against hercan be rendered?

She can make a contract for the payment of money, though it is unsecured and unsigned by her husband. A general judgment can be rendered against her thereon, although it can only be enforced against her separate property. ( Civil Code, secs. 158, 171, and 167 as amended.)

We were therefore entitled to the judgment for the deficiency.

JUDGES: Rhodes, J. Mr. Chief Justice Wallace and Mr. Justice Niles expressed no opinion.

OPINION

RHODES, Judge

Action to foreclose a mortgage of real estate. On the 3rd day of July, 1874, John Hansen and Hannah Hansen, being the owners, as husband and wife, of certain community property, including the mortgaged premises in controversy, united in the execution of a deed purporting to convey all their community property to William Nelson, in trust, to the effect that he should convey to John Hansen a certain portion of the community property, including the mortgaged premises, to hold as his separate property, and also that he should convey to Hannah Hansen the remaining portion of the community property, to hold as her separate property. Nelson thereupon, and in pursuance of the deed of trust, executed deeds, whereby he purported to convey to the respective parties the portion of the community property to which each was entitled, according to the terms of the deed of trust. Hannah Hansen also executed a deed purporting to convey the mortgaged premises to John Hansen, her husband, as his separate property; and thereafter he devised the same to Ellen E. Barlew, one of the defendants, who afterwards executed the promissory note, deed, and mortgage in suit. It is alleged in the complaint that Hannah Hansen claims that the above mentioned deeds were ineffectual to vest the title to the mortgaged premises in John Hansen in severalty, and that she is the owner of the undivided half thereof. The note and mortgage in suit were executed by Ellen E. Barlew alone; but her husband is made a defendant, and also Hannah Hansen. The defendants severally filed general demurrers to the complaint. The demurrers were overruled, and the plaintiff had judgment against Ellen E. Barlew for the amount due upon the note; and it was also ordered that the mortgaged premises be sold for the satisfaction of the amount due, and if there should be a deficiency after the sale, that a judgment therefor be docketed against her. It was also adjudged, in the usual form, that the defendants claiming, etc., subsequent to the mortgage, be forever barred and foreclosed, etc.

Can a married woman make a promissory note and secure its payment by the execution of a mortgage of her separate real estate? It is provided by sec. 158 of the Civil Code that " either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried." The words, " any engagement or transaction respecting property " are sufficiently comprehensive to include a promissory note or mortgage; they may not be the most apt to express the legislative intent, but there is no room for doubt that it was the intent to give married women the same power and capacity to contract that an unmarried woman possesses, subject to certain limitations and restrictions mentioned in the Code. Previous to the adoption of the Code, she could mortgage her real estate, provided the husband united in its execution, but under the Code his signature is unnecessary. She was deprived of the capacity to make a contract for the payment of money by sec. 167 of the Code as first adopted; but the section was repealed in 1874. The limitations and restrictions upon her capacity to contract, and the special provisions respecting the mode in which she was required to contract, as provided by the laws formerly in force, were designed not only for her protection in dealing with third persons, but also for her security against the improvidence, coercion, undue influence, or fraud of her husband. But the Code has abrogated almost all of those limitations and restrictions, and has relieved her from the disabilities under which she formerly labored, and in respect to her property and contracts has taken away the sort of supervision or control which the husband formerly exercised. The rents, issues, and profits of her separate property become her separate property; and she may " convey her separate property" without the consent of her husband. (Sec. 162.) Her earnings are her separate property. (Secs. 168 and 169.) She and her husband may hold property as joint tenants, tenants in common, or as community property. (Sec. 161.) They may " alter their legal relations" as to property, and may, in writing, agree to an " immediate separation, and may make provision for the support of either of them and of their children during such separation." (Sec. 159.) The property in respect to which they may " alter their legal relations" would seem to include property held by them, as mentioned in sec. 161--in joint tenancy, tenancy in common, and as community property, and perhaps such as is, or would become, the separate property of either. The " legal relations" which they occupy as to property must include the ownership, possession, and the power to transfer, incumber, and charge the property, present and future. In making contracts altering their " legal relations" as to property, no other or different capacity is given to the husband than to the wife, nor is any different mode prescribed for the wife--except that the acknowledgment of her conveyance of real estate must be made as provided in secs. 1093 and 1191. The separate property of the husband is not liable for the debts of the wife contracted before marriage, (sec. 170) but her separate property is liable for her debts contracted before or after marriage. (Sec. 171.) She may sue or be sued alone, when the action concerns her separate property, or her claim or right to the homestead, or is between herself and her husband; or when she is living separate and apart from her husband. ( Sec. 370, Code of Civil Procedure.)

In Wilson v. Wilson , 36 Cal. 447, it was held that the wife could maintain an action against her husband upon a promissory note made before marriage. In view of the foregoing provisions of the Codes, and others that might be mentioned tending to show the removal of the disabilities of coverture, it would seem beyond all question that the wife has competent power to make a promissory note and execute a mortgage of her real estate to secure its payment. If she is under any disability in this respect, she has not the capacity of an unmarried woman in making contracts--or entering into engagements or transactions--respecting her property, as conferred upon her by sec. 158. The making of promissory notes and the execution of mortgages are among the most common and ordinary contracts respecting property; and in view of the almost entire removal by the Codes of the common-law disabilities incidental to coverture, a married woman should not be denied the capacity to contract in that mode unless the prohibition is clearly indicated by the Code. In my opinion, the defendant Ellen E. Barlew had competent capacity to execute the note and mortgage, and they are binding upon her and her interest in the mortgaged property. Parry v. Kelly , 52 Cal. 334, is clear authority to the point that a married woman is as competent to execute a mortgage as a femme sole; and it was also held that her mortgage of the community property was not void in the extreme sense.

Is the defendant Ellen E. Barlew liable to a personal judgment for the amount due upon the promissory note, and for the sale of the mortgaged premises, and for the deficiency that may remain after the sale? The answer is obvious. The usual responsibility upon the note and mortgage accompanies the power of their execution, there being nothing in the Code limiting the responsibility.

The remaining question discussed by counsel--Whether the husband and wife have power, by deeds through a trustee, or directly to each other, of portions of the community property, or by both of those modes, to vest the title of the respective portions in the grantee in severalty?--although from what has already been said it may not be difficult of solution, cannot be authoritatively decided at this time, because it does not arise in the case. In an action to foreclose a mortgage, a title claimed adversely to the mortgagor cannot be litigated. (Hitchcock v. Clark, No. 4810, Oct. Term, 1875.) The judgment, as rendered, does not affect the title alleged to be claimed by Hannah Hansen.

A rehearing was granted in this case, and the final decision was rendered without an opinion.

Judgment affirmed.