Rogers v. Weil , 12 Wis. 664 ( 1860 )

By the Court,

Cole, J.

This was an action to foreclose a mortgage. Tbe mortgage was executed by Eliza Adelaide Wiel and Baruch 8. Weil, to secure tbe payment of a certain bond in tbe penal sum of thirty-five thousand dollars, conditioned, &c., given by them to tbe respondent. Tbe complaint represents that Eliza A. and Baruch 8. were husband and wife at tbe commencement of tbe action. Mrs. Weil made default. Judgment of foreclosure and sale was rendered, and also a judgment against Mrs. Weil and her bus-band, for any deficiency tbe sheriff might report due after tbe sale óf tbe mortgaged premises. And tbe only question we have to consider is, whether a personal judgment could be taken against Mrs. Weil, for any deficiency which might be found due after tbe application of tbe proceeds of tbe sale. We suppose it could,not In tbe case of Wooster vs. Northrup et al., 5 Wis., 245, tbis court decided tbat tbe act of legislature entitled “ an act to provide for tbe protection of married women in tbe enjoyment of tbeir own property,” did not rebeve tbe wife during coverture from ber disability at common law to make contracts in such a manner as to become liable to a personal action upon them. Tbis decision bas been very much shaken, if not overruled, by tbe case of Conway vs. Á. Hyatt Smith et at, decided at tbe present term,' in wbicb a majority of tbe court beld tbat a married woman may contract in respect to tbe improvement and management of ber own property, and render berself liable to a personal action upon such contracts. I felt constrained to dissent from tbe opinion in tbat case, for reasons not necessary to be stated bere. Still, at best, we all tbink tbat a party ought not to bave a personal action upon a contract made by a married woman during ber coverture, without showing in tbe complaint tbat tbe contract related to ber own separate property, and was one upon wbicb she might become liable to a personal judgment. Tbis not being-done in the complaint in tbis case, it was erroneous,to take a personal judgment against Mrs. Weil for any deficiency.

Tbe counsel for tbe respondent contends tbat it nowhere appears in tbe case tbat Miza Adelaide and Baruch S. Weil were baron and feme at tbe time they executed tbe bond and mortgage. But tbis is a mistake as to what does really appear upon tbe record. f Tbe bond and mortgage both set forth tbat they are made by “ Eliza Adelaide Weil and Baruch S. Weil, her husband, both of,” &c., showing clearly tbat they were married at tbe time these instruments were executed.

So much of tbe judgment of tbe circuit court as gives a personal judgment againt Mrs. Weil for any deficiency, must be reversed, and the judgment of the circuit court, in all other respects, is affirmed.