Opinion by
Mr. Chief Justice Moore.
The statute declaring the liability of each spouse for household outlays reads:
“The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately”: Section 7039, L. O. L.
This law, enacted in the year 1878, was evidently borrowed from Iowa, for the statute of that state upon this subject is identical with the language quoted: Ann. Code of Iowa, 1897, §3165; Watkins v. Mason, 11 Or. 72 (4 Pac. 524). The defendants’ counsel assert that, having thus appropriated the statute of [532]*532Iowa, the construction put upon the enactment by the Supreme Court of that state was also adopted, whereby the rule established in the case of Frost v. Parker, 65 Iowa, 178 (21 N. W. 507), is controlling herein, and, this being so, errors were committed in awarding the relief granted. In the case relied upon the defendant husband gave his promissory notes for an organ which was used in the family. During the pendency of an action on the notes against the' husband he executed a deed of his real property to another person, who immediately conveyed the premises to the defendant’s wife. A judgment, rendered in that action against the husband alone, was transferred, and the assignee instituted a suit in equity against the husband and wife to subject her land to the lien of the judgment, alleging in the bill that the conveyances were fraudulent, and that the debt for which the judgment was rendered was contracted for family expenses. In deciding that case it was held that the purchase of the organ was an expense incurred on account of the family; that though the husband gave his individual note for the musical instrument, and judgment against him alone was rendered, the plaintiff, as assignee of the judgment, was entitled to the relief sought, and that .such right to equitable relief was not barred by the statute of limitations so long as the debt, in the form which it had assumed, was not barred against the husband. Mr. Justice Beck, in reaching that conclusion, observes:
“We find it unnecessary to inquire into the good faith and validity of the deeds under which the wife claims title to the land, for the reason that, if it be conceded that they are valid, and that her title is not tainted by fraud, the land, as well as the lots, may in this action, be held subject to plaintiff’s judgment;”
[533]*533Further in the opinion the writer, referring to the statute of Iowa, says:
“Here a right is created and a liability declared, but no remedy is provided or pointed out. The right declared is that the creditor of the husband or wife, for family expenses, may have a remedy against both. The liability created is that both shall be liable for family expenses. The remedy to enforce the provision is not pointed out further than that the indebtedness contemplated by the provision may be ‘chargeable upon the property of both husband and wife.’ It has been held that under this provision each is personally liable. * * But it cannot be held that the remedy under this provision is limited alone to a personal judgment, and that, by proper proceedings, the property of the wife may not be pursued without the claim for a personal judgment against her. This is precisely what 'plaintiff seeks to do in this case. No prejudice results to the wife by seeking to enforce the debt against her property without asking a personal judgment against her. The statute, in declaring that her property shall be charged, clearly implies that a remedy against it is contemplated.”
1. When the legislative assembly of Oregon adopts a statute from another state, the construction given to the act by the court of last resort of the state from which the law was borrowed, made prior to its enactment in this state, usually governs the interpretation in Oregon: State v. Townsend, 60 Or. 223 (118 Pac. 1020); Hoskins v. Dwight, 69 Or. 558 (139 Pac. 922). In Black v. Sippy, 15 Or. 574 (16 Pac. 418), which was an action to recover the value of merchandise purchased for and used by a family as necessary expenses, it was ruled that a promissory note, given by the husband to evidence the purchase price of the goods, might be disregarded and a recovery had against the wife upon an itemized exhibit of the articles of merchandise [534]*534sold and delivered. In that case Mr. Chief Justice Lord, referring to the cases of Frost v. Parker, 65 Iowa, 178 (21 N. W. 507), and Phillips v. Kirby, 73 Iowa, 278 (34 N. W. 855), decided, respectively, December 4, 1884, and October 27, 1887, says:
“As a result of the reasoning of these authorities under an identical provision, the wife is liable for necessaries incurred as a family expense, although originally charged to the husband, and for which he had given his note; nor will the transfer of the note discharge her from such liability.”
In a concurring opinion, Mr. Justice Strait an observes :
“I yield an assent to this decision solely on the principle of stare decisis. When the legislature used the terms ‘chargeable upon the property,’ they were using language the signification of which had received a judicial construction, and was fixed in equity, and it ought to be held, therefore, that such language was used in that sense. The effect of such construction would be to create a new remedy in equity against the property of both husband and wife for the necessaries of the family; but Iowa, whence this statute was taken, had given it a different construction prior to its adoption here, which I suppose upon well-settled principles we are. compelled to follow.”
2. That an action at law may be maintained against a married woman to recover the reasonable value of goods, wares, and merchandise purchased for and used as family necessities is conceded under the practice prevailing in Oregon. She is not liable, however, on a contract based on an account stated between her husband and the merchant who sold and delivered goods of that kind: Holmes v. Page, 19 Or. 232 (23 Pac. 961). A married woman would therefore not be liable on a promissory note executed by her husband [535]*535to evidence the purchase price of family expenses. This conclusion repudiates the doctrine promulgated in Frost v. Parker, 65 Iowa, 178, (21 N. W. 507), which case was decided after the enactment of Section 7039, L. O. L., and hence the rule so announced is not controlling in the case at bar. The statute referred to creates, as to the husband and wife, a personal liability which may be enforced in an action at law against them jointly or severally. If both have not joined in executing a promissory note, or assented to the accuracy of an account stated to evidence the value of the necessaries purchased, a recovery can be had against the spouse who did not join in giving or con-, senting to such memorandum only upon the original account of the goods sold and delivered.
3. Section 7039, L. O.
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Opinion by
Mr. Chief Justice Moore.
The statute declaring the liability of each spouse for household outlays reads:
“The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or of either of them, and in relation thereto they may be sued jointly or separately”: Section 7039, L. O. L.
This law, enacted in the year 1878, was evidently borrowed from Iowa, for the statute of that state upon this subject is identical with the language quoted: Ann. Code of Iowa, 1897, §3165; Watkins v. Mason, 11 Or. 72 (4 Pac. 524). The defendants’ counsel assert that, having thus appropriated the statute of [532]*532Iowa, the construction put upon the enactment by the Supreme Court of that state was also adopted, whereby the rule established in the case of Frost v. Parker, 65 Iowa, 178 (21 N. W. 507), is controlling herein, and, this being so, errors were committed in awarding the relief granted. In the case relied upon the defendant husband gave his promissory notes for an organ which was used in the family. During the pendency of an action on the notes against the' husband he executed a deed of his real property to another person, who immediately conveyed the premises to the defendant’s wife. A judgment, rendered in that action against the husband alone, was transferred, and the assignee instituted a suit in equity against the husband and wife to subject her land to the lien of the judgment, alleging in the bill that the conveyances were fraudulent, and that the debt for which the judgment was rendered was contracted for family expenses. In deciding that case it was held that the purchase of the organ was an expense incurred on account of the family; that though the husband gave his individual note for the musical instrument, and judgment against him alone was rendered, the plaintiff, as assignee of the judgment, was entitled to the relief sought, and that .such right to equitable relief was not barred by the statute of limitations so long as the debt, in the form which it had assumed, was not barred against the husband. Mr. Justice Beck, in reaching that conclusion, observes:
“We find it unnecessary to inquire into the good faith and validity of the deeds under which the wife claims title to the land, for the reason that, if it be conceded that they are valid, and that her title is not tainted by fraud, the land, as well as the lots, may in this action, be held subject to plaintiff’s judgment;”
[533]*533Further in the opinion the writer, referring to the statute of Iowa, says:
“Here a right is created and a liability declared, but no remedy is provided or pointed out. The right declared is that the creditor of the husband or wife, for family expenses, may have a remedy against both. The liability created is that both shall be liable for family expenses. The remedy to enforce the provision is not pointed out further than that the indebtedness contemplated by the provision may be ‘chargeable upon the property of both husband and wife.’ It has been held that under this provision each is personally liable. * * But it cannot be held that the remedy under this provision is limited alone to a personal judgment, and that, by proper proceedings, the property of the wife may not be pursued without the claim for a personal judgment against her. This is precisely what 'plaintiff seeks to do in this case. No prejudice results to the wife by seeking to enforce the debt against her property without asking a personal judgment against her. The statute, in declaring that her property shall be charged, clearly implies that a remedy against it is contemplated.”
1. When the legislative assembly of Oregon adopts a statute from another state, the construction given to the act by the court of last resort of the state from which the law was borrowed, made prior to its enactment in this state, usually governs the interpretation in Oregon: State v. Townsend, 60 Or. 223 (118 Pac. 1020); Hoskins v. Dwight, 69 Or. 558 (139 Pac. 922). In Black v. Sippy, 15 Or. 574 (16 Pac. 418), which was an action to recover the value of merchandise purchased for and used by a family as necessary expenses, it was ruled that a promissory note, given by the husband to evidence the purchase price of the goods, might be disregarded and a recovery had against the wife upon an itemized exhibit of the articles of merchandise [534]*534sold and delivered. In that case Mr. Chief Justice Lord, referring to the cases of Frost v. Parker, 65 Iowa, 178 (21 N. W. 507), and Phillips v. Kirby, 73 Iowa, 278 (34 N. W. 855), decided, respectively, December 4, 1884, and October 27, 1887, says:
“As a result of the reasoning of these authorities under an identical provision, the wife is liable for necessaries incurred as a family expense, although originally charged to the husband, and for which he had given his note; nor will the transfer of the note discharge her from such liability.”
In a concurring opinion, Mr. Justice Strait an observes :
“I yield an assent to this decision solely on the principle of stare decisis. When the legislature used the terms ‘chargeable upon the property,’ they were using language the signification of which had received a judicial construction, and was fixed in equity, and it ought to be held, therefore, that such language was used in that sense. The effect of such construction would be to create a new remedy in equity against the property of both husband and wife for the necessaries of the family; but Iowa, whence this statute was taken, had given it a different construction prior to its adoption here, which I suppose upon well-settled principles we are. compelled to follow.”
2. That an action at law may be maintained against a married woman to recover the reasonable value of goods, wares, and merchandise purchased for and used as family necessities is conceded under the practice prevailing in Oregon. She is not liable, however, on a contract based on an account stated between her husband and the merchant who sold and delivered goods of that kind: Holmes v. Page, 19 Or. 232 (23 Pac. 961). A married woman would therefore not be liable on a promissory note executed by her husband [535]*535to evidence the purchase price of family expenses. This conclusion repudiates the doctrine promulgated in Frost v. Parker, 65 Iowa, 178, (21 N. W. 507), which case was decided after the enactment of Section 7039, L. O. L., and hence the rule so announced is not controlling in the case at bar. The statute referred to creates, as to the husband and wife, a personal liability which may be enforced in an action at law against them jointly or severally. If both have not joined in executing a promissory note, or assented to the accuracy of an account stated to evidence the value of the necessaries purchased, a recovery can be had against the spouse who did not join in giving or con-, senting to such memorandum only upon the original account of the goods sold and delivered.
3. Section 7039, L. O. L., does not treat the marital relation as a partnership, so that the signing of the firm name to a promissory note by one spouse, to evidence expenses incurred on account of the family, is thereby rendered an obligation binding upon the other, who did not join in executing the writing. While the husband and wife may be sued jointly for family expenses, an action for such recovery is usually several and brought against the party who owns property which by the statute is made chargeable with such expenses, and such being the general practice, the spouse who has no property, though he may, in the first instance, impose a burden upon the property of his life associate, for the value of such goods as he may purchase as family necessities, ought not to be permitted by any act of his own to extend the statute of limitations against the other spouse who, in our opinion, is not a surety, as has been held in some other jurisdictions. Each spouse under the organic law of [536]*536this state is guaranteed the right of a trial hy jury, in an action at law, before his property becomes ultimately liable for the payment of the reasonable value of goods sold and delivered, assuming always that no fraud has been practiced by a conveyance of property from one spouse to the other in anticipation of the rendition of a judgment in such action, in which case equity would undoubtedly afford relief if no laches had occurred.
4. In the case at bar, it will be remembered, the answer avers that the. plaintiff secured a conveyance from her husband of his homestead for a valuable consideration. She never had an opportunity to contest an averment of the quantity of goods sold and delivered, or to challenge the value thereof. She is not liable upon the promissory note given by her husband to evidence the purchase price of such merchandise, nor is she bound by the judgment rendered against bim since she was not a party to that action. As to her, the statute of limitations of six years has run against the original demand.
The conclusion reached renders it unnecessary to consider Section 2296 of the Revised Statutes of the United States, exempting homesteads from enforced sales upon execution. No error was committed as alleged, and the decree is affirmed.
Affirmed. Rehearing Denied.
Mr. Thomas M. Dill, for the petition.
Messrs. Sheahan & Cooley, contra.
In Banc.