In re Alexander , 37 Iowa 454 ( 1873 )

Cole, J.

It is not controverted that if T. H. Alexander and his wife had continued to reside in Illinois, the claims of the wife, as presented in this action, would have been fully and completely protected to her there by the statute of that State, referred to in the agreed statement of facts. Nor is there any controversy that the money loaned by the wife to the husband was her own separate property, derived from her father.

The single question presented is, whether a wife who has money in her own right, and loans it to her husband, taking his notes for it at the time of the loan, loses all right thereto as against the creditors of her husband, unless she files for record with the recorder of deeds of the county, a notice of her claims, etc. % We are entirely agreed in holding that she does not, and that such filing of notice is not necessary to protect her rights.

Under our statute, the wife is competent to contract in relation to her separate property, and such contracts bind herself only, and do not bind the husband. Rev. 1860, § 2506 (1454), and ch. 126, Laws of 1870. The taking by the wife from the husband of his notes for the money at the time it was loaned, negatives the idea of reduction to possession by the husband so as to make the money his. The only two instances in which our statute requires a notice to be filed by the wife in order to protect her rights, are, first, when she leaves her property under his control; in which case it will be presumed, as respects creditors, an entire surrender of her right unless she files a notice, stating the amount in value of such property, and that she has a claim therefor out of the estate of her husband, etc., whereby she becomes a preferred creditor. § 2500. And, second, where she leaves specific articles of personal property under his control, she must file a notice of her ownership thereof, or such articles will be liable for his debts. § 2502. In the first case the title passes to the husband, and she becomes his preferred creditor for the value, in case of his bankruptcy or death; while in the other she retains the title.

But our statute also provides (Rev. 1860, § 2504 [1452]), “ In tbe case of bank stock, written securities, things in action, or other property which does not ordinarily pass by mere delivery or by oral contract without an indorsement, assignment or other written evidence of such transfer, knowledge of ownership of the wife will be presumed without the recording required by the preceding two sections, unless such property has been conveyed to the wife by the husband.” This, it would seem, settles the question beyond controversy. The money was the separate property of the wife; she had power to contract respecting it; she loaned it to her husband and took his written securities, — promissory notes, — therefor, which she kept in her own possession; and by the section last quoted, knowledge of her ownership is presumed without any record of notice. She is therefore a creditor of the husband, equal to any other, though not a preferred creditor. Reversed.