Ellis v. Abbott ( 1914 )

Mu. Justice Moore

delivered the opinion of the court.

It is argued that, as the title to the land in Klickitat County, Washington, was in the name of H. M. Abbott, his wife joined in executing the deed to the plaintiff only to bar her inchoate right of dower; that, such being the case, she is not bound by any of the covenants contained in the deed, and hence an error was committed in rendering a judgment against her. In support of the legal principles insisted upon, reliance is placed upon Section 7101, L. O. L., which was enacted in the year 1854, and reads:

“A husband and wife may, by their joint deed, convey the real estate of the wife, in like manner as she might do by her separate deed if she were unmarried; but the wife shall not be bound by any covenant contained in such joint deed.”

1. As the land granted to the plaintiff is situate in the State of Washington, the covenant of warranty to which Mrs. Abbott subscribed her name to evidence the transfer of the title is governed by the law of that state: 22 Am. & Eng. Ency. of Law (2 ed.), 1337; 2 Devlin, Deeds (3 ed.), § 837.

2. The statute of Washington prescribing the property rights of married women and limiting or expanding their liabilities was neither pleaded nor offered in evidence, and, in the absence of such averment and proof, it would undoubtedly be presumed that the rules of the common law relating to the subject prevail in that state: Goodwin v. Morris, 9 Or. 322; Scott v. Ford, 52 Or. 288 (97 Pac. 99); De Vall v. De Vall, 57 Or. 128 (109 Pac. 755, 110 Pac. 705). Whatever the law may be in the state where the real property is situated, as notice thereof will not be taken and as this action is transitory and was tried on the assumption that the statutes of Oregon were controlling, the judgment, in this instance, will be reviewed on the theory thus adopted.

3. Section 7101, L. O. L., hereinbefore quoted, was impliedly repealed by Section 7049, L. O. L., which was enacted in the year 1878 and reads:

“Contracts may be made by a wife, and liabilities incurred, and the same enforced by or against her to the same extent and in the same manner as if she were unmarried.”

Section 7050, L. O. L., as far as material herein, is as follows:

“All laws which impose or recognize civil liabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed.”

In construing these provisions in the case of First National Bank v. Leonard, 36 Or. 390 (59 Pac. 873), it was held that a wife, who joined her husband in encumbrancing his property to secure his debt, the mortgage containing a covenant on the part of both that they would pay the obligation, was bound thereby,' and that a personal decree rendered against her was proper and enforceable out of her separate property. The conclusion reached in that case governs the determination herein, and shows that Mrs. Abbott is liable on her covenant for the damages resulting from a breach of the warranty.

4. It is maintained that the defendants are not liable for the payment of the attorney’s fees incurred by the plaintiff in defending the action brought against him by Reynolds for a breach of the warranty contained in the deed transferring the title to the premises. The rule thus contended for is without merit, for in Balte v. Bedemiller, 37 Or. 27 (60 Pac. 601, 82 Am. St. Rep. 737), the decision rendered in Olds v. Cary, 13 Or. 362 (10 Pac. 786), was distinguished, and it was held that a vendee who, after an unavailing notice to his vendor, unsuccessfully defends the title that has been warranted to him is entitled to recover from the vendor as a part of the damages the reasonable amount of his attorney’s fees for making the defense.

5. Pursuant to an order of the court and a stipulation of the parties, waiving all objections as to the time, place, form and manner of taking the testimony, the depositions of A. S. Ellis and L. B. Snyder were received in evidence, over objection and exception that such written, sworn declarations were incompetent, irrelevant, immaterial and improper. It is contended by defendants’ counsel that an error was committed in receiving such evidence, in the absence of testimony tending to show the inability of such witnesses to be present at the trial.

In Carter v. Wakeman, 45 Or. 427 (78 Pac. 362), the same objections were urged at the trial as were made herein, and further that no foundation for the introduction of the deposition had been laid, which objection in that case having been overruled and an exception allowed, it was held that an error had been committed. As to the degree of proof required when such objection is properly made in the trial court, see the case of State v. McDonald, 59 Or. 520 (117 Pac. 281). In the case at bar the objection did not state that it was made on the ground that no foundation had been laid for the introduction of the deposition in evidence.

In the examination of a cause upon appeal, the inquiry is limited to the identical question considered by the trial court. Any other course of procedure would not be a review. An attorney cannot be permitted to speculate upon the possibility of a judgment favorable to his client, and, if disappointed in this particular, enlarge the objections interposed at the trial. The error insisted upon was not presented in such manner as to notify the court and adverse counsel of the real question now urged, so as to afford an opportunity to make the requisite proof as a condition precedent to the introduction of the deposition in evidence. Such being the case, the error complained of is unavailing.

6. Other objections are assigned as follows: (2) “That the court erred in overruling defendants.’ objection to the introduction of evidence.” (4) “The court erred in overruling defendants’ objection to certain other evidence at said trial, as appears more fully from the bill of exceptions herein.” The exceptions do not point to the particular objections that may have been made and overruled, or set forth the testimony that may have been received or excluded, and for that reason they are insufficient.

An examination of the entire testimony contained in the transcript which is attached to and made a part of the bill of exceptions convinces us that no error was committed in denying the motion for a judgment of nonsuit.

It follows that the judgment should be affirmed, and it is so ordered. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Bamsey concur.