Barrell v. Tilton/Opinion of the Court

Of the numerous points made by the defendants below, the plaintiffs in error here, only three require notice. The others are either immaterial, or unsupported by the record. The three are these: (1) The ruling of the court on the demurrer of Aurelia to the complaint; (2) the ruling of the court that the decree of the state court was conclusive as to the right of Aurelia to mortgage the property for the debt of her husband; and (3) the ruling sustaining the validity of the sale, under the decree of the state court, entered on the twenty-third of March, 1880.

1. The objection taken by the demurrer of Aurelia is that, being the wife of Colburn Barrell, she cannot be joined with him as a co-defendant in an action for the possession of real property, of which both are alleged to be in the occupation. It is founded on the theory that, by the common law, her identity is so merged in his that she cannot have possession of such property independently of him. If there be any such rule of the common law, upon which we affirm nothing, it has been abolished in Oregon. By a statute of that state approved on the twenty-first of October, 1880, all laws which impose or recognize any civil disabilities of the wife, not imposed or recognized as to the husband were repealed, except that the right to vote and hold office was not conferred upon her; and 'for any unjust usurpation of her property or natural rights' she was declared to have the same right to appeal to the courts of law and equity for redress that the husband has. In that state she can hold property jointly with him, or separately from him. There would seem, therefore, to be no sound reason why, if in possession with him of property which rightfully belongs to another, she may not be jointly sued with him for its recovery. In the present case she claimed the larger part of the land in controversy as her separate property.

2. The second objection, that the decree of the state court in the suit by Ladd against the defendants does not bar the right of Aurelia to the property, is founded upon her supposed inability to mortgage her property to secure a debt of her husband under section 5 of article 15 of the state constitution, which declares 'that the property and pecuniary rights of every married woman at the time of marriage, or afterwards acquired by gift, devise, or inheritance, shall not be subject to the debts or contracts of the husband.' But that clause merely preserves the property of the wife from its compulsory subjection to his debts or contracts. It was not designed to control her voluntary disposal of it, and, in the absence of other restrictions, she could mortgage it to secure the payment of a debt owing by him.

The objection, however, is entirely disposed of by the decree in the state court. The rights of the parties under the conveyance of the defendants to Ladd of January 17, 1877, were fully considered and determined in that case. The conveyance was adjudged to be a mortgage. The rights of the defendants in the property were foreclosed, and the property was ordered to be sold, and was sold, and the sale was confirmed by the court. The conveyance to Ladd as the purchaser at such sale transferred all the estate of the defendants in the property. The question as to her ability to mortgage the property cannot be raised again in this case. It has been finally adjudged against her present contention.

3. The two decrees in the suit in the state court do not conflict in the matters adjudged. The latter decree differs from the first merely in giving the boundaries of the property to be sold as one tract, and also the boundaries of each of the seven parcels into which it was divided. This addition to the original decree could be made by the court during the term in which that decree was rendered. The court could lose jurisdiction over it only by the adjournment of the term with no motion pending respecting it. When the second decree was made, it would, as stated by the learned district judge, have been a better course 'more orderly and convenient,' as he expresses it-'to have referred to the first one, and stated in what particular the latter was intended to modify, supplement, or supersede the former.' But this was not essential; a comparison of the two decrees discloses the additions made to the first one. Judgment affirmed.