Privitt v. Moose ( 1939 )

BROWN, Justice.

Appellee sued appellant, Ada Privitt, on a note and chattel mortgage given to secure same, and made no mention of the status of the defendant, but Ada Privitt, joined by her husband, answered that the note and mortgage were executed by Ada Privitt without the knowledge or consent of her husband, J. W. Privitt; that the debt was not incurred for any of .the purposes for which a married woman could-bind herself or her separate estate and was not for “necessaries”, and that the chattel mortgage was given on property belonging to the community.

The appellee — plaintiff below — made no effort to plead any fact on which judgment. could.be had against Ada Privitt, or her husband, J. W. Privitt; in fact, the husband was not made a party defendant and no judgment was sought against him.

The cause being tried to the’ court, it was (found that Ada Privitt was a married woman when she executed the note and mortgage; that her disabilities of cover-ture have not been removed; that the personal property so mortgaged is a part of the community estate; “that said note and mortgage were executed for the purpose of defendants repairing certain personal property and as security for a personal loan, and was not necessaries furnished defendants or defendant’s children”; that the note and mortgage were executed by Ada Privitt “without the consent or knowledge of her husband, J. W. Privitt, and there is no direct evidence as to the date that he discovered the execution of same.”

With these findings in hand, the trial court gave the- plaintiff — appellee—a judgment for debt and' foreclosure of the chattel mortgage lien against both Ada Privitt and J. W. Privitt.

No statement of facts accompanies the record.

In the light of such a record, it becomes our duty to reverse the judgment of the trial court and render judgment here for appellants. It is so ordered.