Palmer v. Murray , 8 Mont. 174 ( 1888 )

Liddell, J.

On the 17th of April, 1872, Lena Emma Owens married William J. Palmer, and thereafter took the name of Emma J. Palmer. On the same day she executed and filed the following declaration and list of separate property, in the recorder’s office for Deer Lodge County, where she resided before, at the time of, and ever since her marriage:—

“ Know all men by these presents, that I, Lena Owens, now sole and unmarried, and residing in the county of Deer Lodge, and Territory of Montana, make known by these presents, published, to whom it may concern, that I claim and hold in my separate right, as against any right, title, or interest of William J. Palmer, with whom I contemplate marriage, or as against any right, title, or interest said Palmer may acquire by virtue of the marriage to be solemnized between myself and said Palmer, of, in, and to the following described property, to wit: All of the horses, mares, colts, two-year olds, yearlings, being about sixty head of old ones, including horses, mares, two-year olds, and yearlings, and thirty-one sucking colts, now on the ranch known as the ‘ Palmer Ranch/ one mile above the mouth of Warm Springs Creek, on the Warm Springs Creek, about twelve miles below the town and county of Deer Lodge, Montana Territory ; it being the same property described in a certain complaint in an action brought in the District Court, Second Judicial District, for said county of Deer Lodge, and Territory of Montana, entitled Lena Owens v. W. W. Jones el al., filed in said court on the twentieth day of November, 1871, with the addition of the sucking colts.

“Dated the seventeenth day of April, 1872.

her

“Lena X Owens. mark

“ Filed for record, April 17, 1872.”

This list or exhibit was duly recorded on page 305 of Book. E of Miscellaneous Records of Deer Lodge County, and the marriage certificate was also executed and properly recorded on the same day. Some time in the fall of 1883, Palmer, the husband/ executed a chattel mortgage in favor of James A. Murray (for five thousand dollars with interest) on one hundred and seventy-five head of horses branded “ P ” on left shoulder, and sixty-five head of cattle branded “P” on the jaw and left side, the horses and cattle being then on the Palmer range, on Warm Springs Creek. When this note became due, in 1884, Murray, under authority contained in the mortgage, had the property seized and sold by James B. McMaster, the sheriff of the county; Among the property sold were forty-five head of stock horses/ branded KP” on the left shoulder, and claimed by the present plaintiff. Mrs. Palmer, on the 21st of April, 1885, instituted this suit against the sheriff aforesaid to recover four thousand five hundred dollars, the value of the forty-five head of stock horses seized as above set forth, In her complaint she alleges that the horses above described were the original stock and increase as set forth in the list filed by her on the 17th of April, 1872; that the property was and is her own and not liable for her husband’s debts; that she caused to be executed and filed in the recorder’s office of Deer Lodge County the list and declaration above referred to; that the act of the sheriff in taking and depriving her of the possession of the property was unlawful, -wrongful, and without her consent. She makes the recorded list a part of her complaint; and avers that she was married to W. J. Palmer on the seventeenth day of April, 1872, and is the Lena Owens mentioned in the list. The present defendant had himself substituted in place of McMaster, the sheriff, against whom the suit was originally brought, and straightway filed a demurrer to the complaint, which being sustained, the complainant appealed the case to the Supreme Court, where the judgment of the lower court was reversed, and the cause remanded for a new trial. (See Palmer v. Murray, 6 Mont. 125.) The defendant then filed his answer, and denies that there has been any compliance with the law which requires the married woman to record a list of her separate property, avers the execution of the mortgage referred to, and the taking of the property in dispute, and its sale to satisfy the same; and finally puts the wife upon proof of her ownership of the property. And we here remark .that the answer contains no averment or intimation of fraud, actual or constructive, on the part of the wife, and no knowledge or consent to the mortgage; nor does the answer allege that the defendant parted with any money in consideration of the mortgage; and for aught that appears from the complaint, the hypothecation may have been made for a pre-existing indebtedness of the husband. The case was tried on its merits, and resulted in a verdict for the plaintiff for $1,785, with ten per cent interest thereon from the fourth day of May, 1884, the date of the illegal seizure, and a consequent judgment thereon for $2,151, with legal interest from its date. From the judgment and order refusing a new trial the present appeal is prosecuted. During the trial the plaintiff offered in evidence the original declaration and list of separate property which she bad caused to be filed; to which the defendant’s counsel objected, for the reason that the document offered was not a compliance with the law in this: “that it does not appear to have been executed by a married woman, but on its face shows that it was executed by an unmarried woman; and for the further reason that it was executed by one Lena Owens, and not, as it should be, by Emma J. Palmer, the plaintiff; and that the description in the list is too vague and indefinite to found any rights upon, and was, therefore, irrelevant and immaterial.” The objection being overruled, the defendant reserved a bill of exceptions, and insists upon its validity with zeal and ability. Many other exceptions were taken, but we do not deem them of sufficient importance to deserve consideration; for, after a careful examination of the transcript, the proof is overwhelming that the property in dispute is that of the wife, and the judgment must stand, if the declaration was a substantial and valid compliance with the law. Both in brief and oral argument counsel for appellant have abandoned all other defenses than the point reserved in the bill of exceptions, as above stated, and admit that the verdict must stand if the declaration is good and valid under the law.

Before considering the objections it will be necessary to examine the decision of the case as reported in 6 Mont., and find out what was there decided. By referring to that case, it will be found that Chief Justice Wade, as the organ of the court, incorporated into his opinion the declaration and list filed; and that he commented upon the sufficiency of the declaration, saying: “ Here was an honest attempt, made in good faith, by a woman upon the eve of her marriage, to secure for herself, and protect from her husband’s debts, the property she. then owned in her own right. The list was filed and recorded in her maiden name, but she was careful to give notice to the public of her intended marriage with William J. Palmer.” The objection of the defendant that the list is signed by Lena Owens instead of by the plaintiff, Mrs. Palmer, is certainly disposed of, and was evidently under consideration when the learned judge wrote the opinion, else he would never have used the expressions referred to. The demurrer to the complaint raised all the questions which were apparent upon the face of the complaint and list. An absence of any or all description in a list filed would, perhaps, be ground for its exclusion; but where the description is merely imperfect, it is proper to admit the list, and let the jury decide from the evidence. It must be borne in mind that the law does not require a description of the separate property, but merely a list thereof, to be filed. In that respect there has been a complete compliance with the law; for the plaintiff has specified the number and kind of animals, their range and locality, and further referred to an accurate description of them as on file in the record of a certain suit in the District Court of the county in which she resides.

. Under the common law, the personal property of the wife became the property of the husband upon his reducing it to his .possession, and it might be taken to pay his debts. So com.pletely did the wife endow him with this species of property by -marriage, that to a certain extent she lost her identity and rights. The rigor of the law in this respect has been relaxed in -many of the States, and, under the advancement and influence of such legislation, the legislature of Montana has enacted, similar laws for the protection of the property and rights of married women. (See Comp. Stats. Gen. Laws, § 1432.) And as was .well said in the case of Griswold v. Boley, 1 Mont. 556: “ In all proper cases, the court will carry the law into execution.” Whenever there is an honest endeavor and substantial compliance with the law, the court will not permit the wife’s property to be taken for the payment of the husband’s debts; for no .particular form of list is required by law. The questions presented by the defendant’s bill of exceptions were certainly all apparent upon the face of the paper, and came properly before •the court upon argument of the demurrer: (1) Could a declaration and list, filed by an unmarried woman in contemplation of marriage, protect her property from the pursuit of her intended husband’s creditors after the marriage? (2) Could a declaration and list signed by Lena Owens protect her property from the pursuit of her husband’s creditors, when after marriage she assumed the name of Emma J. Palmer? (3) Was the description in the.list filed sufficient? Evidently all of these questions were before the court in 1886, when the demurrer was overruled, and the case remanded. Whether these questions were correctly decided, it is not our province to determine. They have been passed upon by this court, either directly or indirectly, and are now res adjudicata. There must be an end of litigation ; and when questions of law are once presented by demurrer, and passed upon by this court, they will not be reviewed again on appeal, though reserved in -a bill of exceptions taken upon the trial of the case on its merits. That decision has now become the law of the case in all of its stages, and cannot be departed from, so far as the questions of law or fact are concerned, which were therein presented for review or decision. (Gates v. Salmon, 46 Cal. 361; Brady v. Kelly, 54 Cal. 590.)

The defendant has called our attention in the brief to the possibility of a creditor being misled by the index of the recorder’s office. Such a thing is possible. The recorder may. not properly index a mortgage, sale, or married woman’s declaration and list, although it is made his duty to correctly Index all papers and documents which the law requires to be recorded (Comp. Stats. Gen. Laws, §§ 835, 836, 838); but it will not be contended for a moment that his failure to perform his duty in this respect will destroy or affect the rights of parties whose documents have been properly filed and recorded. The book in which the acts are required to be recorded is the place for third persons tó inquire, and not the index, which is merely for the convenience of persons investigating the records. An act may be properly indexed, but not filed or recorded; while, to affect third persons, it must be filed and recorded. After an examination of the sections referred to, we fail to see how any creditor searching the records could fail tó be put upon his guard by reading the declaration of Lena Owens, or to have been likewise informed sufficiently had the declaration been properly indexed. The records of the recorder’s office declared the fact that Lena Owens was the owner, or claimed to be, of certain property therein mentioned; that she contemplated marriage with W. J. Palmer; that she did marry him on the day she filed the declaration of sole ownership; and she thereby notified the world that she was unwilling that her property should be taken without her consent to pay the creditors of her husband. We see no impropriety in the husband’s controlling the wife’s property so long as she may choose. In fact she may make him her agent in that respect, and no one has the right to complain. Some stress has been laid upon the fact that the property was in the husband’s control at the time the mortgage was given. There is nothing deserving of consideration in the point. “ The wife is not bound to publish the fraudulent conduct or the false assumptions of her husband.” (Griswold v. Holey, 1 Mont. 559; Bank v. Lee, 13 Peters, 107; Morrison v. Wilson, 13 Cal. 495; 73 Am. Dec. 593.)

The doctrine of estoppel is inapplicable to married women, except to prevent them from perpetrating a fraud. When one has recorded her declaration and list, mere silence will not estop her. We cite the cases above referred to with approval, and hold that the actual or apparent possession by W. J. Palmer, at the time of the mortgage of the property named in the recorded list, will not, under the circumstances, estop the wife from disputing with the husband’s creditors this right to take her property to pay his debts. Counsel for appellant with great earnestness urge that the only point decided in the opinion of the Supreme Court in this case was that, as against a mere naked trespasser, the wife might maintain the action; and, in support of this view, they cite the last expression in the opinion, where the judge says: “And if there had been no list at all, even a married woman may protect her separate property against a mere wrong-doer, such as the defendant confesses that he is.” We are unable to concur in this construction of the opinion, for it completely ignores all reasoning of the court, and places the conclusion upon a dictum or proposition in itself correct, but which was entirely unnecessary to be considered in the decision upon the demurrer, and may therefore be treated as obiter. In construing the complaint and list annexed, the court no doubt looked at them as a whole; and in doing so there is no escape from the conclusion that Mrs. Palmer claimed the right to recover, not because it, was her separate property, but for the reason that as a wife she had properly protected it from the pursuit of her husband’s creditors by filing the list as required by law. Obviously, in contemplation of law, the property belonged to the husband, unless the wife had taken the proper steps to preserve it as her separate property, not liable for his debts. She based her right to recover solely upon the ground that the declaration and list having been filed, the property was not liable to be taken without her consent. We know of no law at that time which would allow the wife to maintain such a suit without these necessary allegations. On page 127 of the opinion referred to we find this expression: “If this action concerns the separate property of a married woman, she may sue alone (Code, § 7); and whether the property described in the complaint belongs to the plaintiff depends upon her having substantially complied with the statute of the Territory relating to the property of married women.”

The verdict of the jury allowed the plaintiff $1,785, with legal interest thereon from the date of the seizure, which is fixed in the judgment as the 4th of May, 1884; and by computation the amount is stated in the judgment appealed from to be $2,151, for which sum, with ten per cent interest thereon from date, a judgment is entered, thus compounding the interest. Ho complaint is made as to the right of the plaintiff to interest beyond the judgment. Interest is a mere creature of the statute, and is enforced whenever the agreement or contract therefor is sanctioned by the law; and, in the absence of any agreement or contract, the law fixes the rate, and specifies the cases in which it will be allowed. In the present instance, the suit is to recover damages for an unliquidated amount, and contains no contract or agreement for the payment of interest. This court held, in Randall v. Greenhood, 3 Mont. 512, that the law did not allow interest upon such a demand until after judgment, and struck out of the judgment the amount allowed by the verdict. (Citing, Isaacs v. McAndrew, 1 Mont. 454.) It must also be reduced in this instance, for the further reason that the judgment compounds the interest, a practice for which there is no law in this Territory. (Wilson v. Davis, 1 Mont. 195; Curtis v. Valiton, 3 Mont. 153.) It is therefore ordered that the judgment appealed from be reduced from $2,151 to $1,785, and thus amended, it is affirmed, respondent paying costs of this appeal.

Judgment affirmed.

McConnell, C. J., and De 'Wolfe, J., concur.