Sharpe, J.
This action is brought to recover on a promissory note, reading as follows:
“$645. Kalamazoo, Michigan, March 23, 1926.
“Six months after date we promise to pay to the order of The Edwards
&
Chamberlin Hardware Company, Kalamazoo, six hundred and forty-five and no-100 dollars at The First National Bank, Kalamazoo, Michigan. Value received with interest at 7 per cent, per annum. No undue influence or constraint has been exerted against Lulu Pethick in the execution of this instrument,”
and signed by both defendants, who are husband and wife. It was tried by the court without a jury. A judgment for defendants is here for review on case-made.
The facts are undisputed. On December 16, 1926, the defendant John Pethick was adjudged a bankrupt. by the United States district court. The note was scheduled by him in the list of his liabilities. Plaintiff, although duly notified, made no proof thereof. On March 29, 1928, Pethick “was duly discharged * * * from all his provable debts.”
It is stipulated “that no individual judgment can be rendered against Lulu Pethick alone, and judgment must be against both or neither, ’ ’ and that the question for discussion is, “Does the discharge in bankruptcy of John Pethick bar the rendition of a joint judgment against him and Lulu Pethick?”
The power to establish “uniform laws on the subject of bankruptcies throughout the United States” is conferred upon congress by article 1, § 8, cl. 4, of the Federal Constitution. Under section 25 of the general bankruptcy law (11 USCA), as codified by congress in 1926, it is made the duty of the bankrupt to file “a schedule of his property, showing the amount and kind of property, the location thereof, its money value in detail, and a list of his creditors * * * .”
Under section 32 (11 USCA), a bankrupt is entitled to a discharge on his application therefor if, after a hearing and the consideration of such proofs as the trustee in bankruptcy or the parties in interest shall submit, it appears that he has complied with the provisions of the law, and has not refused to obey any lawful order of the court. This property was treated as exempt from the bankruptcy proceedings.
Section 35 (11 USCA) provides:
“A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as” etc.
It is not suggested that the facts here appearing are within any of such exceptions. If the debt be provable, the bankrupt is discharged therefrom, although no proof thereof be submitted by the creditor.
• “The court in •which the debt is proceeded on is the only proper forum to determine whether a discharge releases such debt.” Gilbert’s Collier on Bankruptcy, p. 386.
That the discharge is a bar to the enforcement of plaintiff’s claim against the husband personally, there can be no doubt. Plaintiff, however, here seeks to recover a joint judgment against the husband and wife under the provisions of Act No. 158, Pub. Acts 1917 (Comp. Laws Supp. 1922, §11488). A copy thereof appears in the margin.
This act
abrogates tbe common-law disability of married women to enter into certain kinds of contracts, and provides that it shall be competent for them to make themselves jointly liable with their husbands upon any written instrument executed by them both. The provision in section 2 that the instrument shall contain a statement that no undue influence or constraint has been exerted against the wife has been elimin'ated by amendment (Act No. 287, Pub. Acts 1929).
The purpose of this act is apparent. Prior to its enactment, a husband and wife whose only property interests were held by them by the entireties had much difficulty in obtaining credit. At common law, neither of them could deal with the estate so held apart from the other. Neither had any interest which could be subjected by creditors so as to affect the rights of the survivor. Under this statute, a written obligation, executed by both of them, may, after recovery of a joint judgment, entered pursuant thereto, be satisfied out of any property held -by them by entireties. The statute will be of no benefit to a creditor relying on it as a means of enforcing a joint obligation so created if the husband, by securing a discharge in bankruptcy, may deprive bim of his right to a joint judgment against them both.
The plaintiff is not here seeking to obtain a personal judgment against the husband. Under the
provisions of section 4, it is made the duty of the court to determine whether the judgment is rendered upon such a written instrument as the wife may render herself liable upon jointly with her husband, and its recital thereof in the judgment shall be indorsed on the execution, if one be issued, for the guidance of the officer making levy thereunder. Satisfaction may then be had out of any property held by them by the entireties. It is presumed that he has turned over all his property to the trustee in bankruptcy. But he had no such interest in that held by him and his wife by the entireties as rendered it subject to the claims of his creditors in the bankruptcy proceeding.
While the action is not, strictly speaking, one
in rem,
it may be said to be
quasi in rem.
In 15 R. C. L. p. 630, it is said:
“Some authorities make a distinction between actions
in rem
and proceedings
quasi in rem,
applying the latter term to suits brought against persons where the plaintiff’s object is to subject certain property of those persons to the payment of the particular claims.”
“It is true that, in a strict sense,- a proceeding
in rem
is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein.”
Pennoyer
v.
Neff,
95 U. S. 714, quoted approvingly in
Arndt
v.
Griggs,
134 U. S. 316, 326 (10 Sup. Ct. 557).
In
Cackley
v.
Smith,
47 Kan. 642 (28 Pac. 617, 27 Am. St. Rep. 311), the court said:
“Text-writers and courts make a distinction between actions
in rem
and proceedings
quasi in rem,
and the latter term is applied to suits brought against persons where the plaintiff’s object is to subject certain property of those persons to the payment of the claims asserted.
* * *
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Sharpe, J.
This action is brought to recover on a promissory note, reading as follows:
“$645. Kalamazoo, Michigan, March 23, 1926.
“Six months after date we promise to pay to the order of The Edwards
&
Chamberlin Hardware Company, Kalamazoo, six hundred and forty-five and no-100 dollars at The First National Bank, Kalamazoo, Michigan. Value received with interest at 7 per cent, per annum. No undue influence or constraint has been exerted against Lulu Pethick in the execution of this instrument,”
and signed by both defendants, who are husband and wife. It was tried by the court without a jury. A judgment for defendants is here for review on case-made.
The facts are undisputed. On December 16, 1926, the defendant John Pethick was adjudged a bankrupt. by the United States district court. The note was scheduled by him in the list of his liabilities. Plaintiff, although duly notified, made no proof thereof. On March 29, 1928, Pethick “was duly discharged * * * from all his provable debts.”
It is stipulated “that no individual judgment can be rendered against Lulu Pethick alone, and judgment must be against both or neither, ’ ’ and that the question for discussion is, “Does the discharge in bankruptcy of John Pethick bar the rendition of a joint judgment against him and Lulu Pethick?”
The power to establish “uniform laws on the subject of bankruptcies throughout the United States” is conferred upon congress by article 1, § 8, cl. 4, of the Federal Constitution. Under section 25 of the general bankruptcy law (11 USCA), as codified by congress in 1926, it is made the duty of the bankrupt to file “a schedule of his property, showing the amount and kind of property, the location thereof, its money value in detail, and a list of his creditors * * * .”
Under section 32 (11 USCA), a bankrupt is entitled to a discharge on his application therefor if, after a hearing and the consideration of such proofs as the trustee in bankruptcy or the parties in interest shall submit, it appears that he has complied with the provisions of the law, and has not refused to obey any lawful order of the court. This property was treated as exempt from the bankruptcy proceedings.
Section 35 (11 USCA) provides:
“A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as” etc.
It is not suggested that the facts here appearing are within any of such exceptions. If the debt be provable, the bankrupt is discharged therefrom, although no proof thereof be submitted by the creditor.
• “The court in •which the debt is proceeded on is the only proper forum to determine whether a discharge releases such debt.” Gilbert’s Collier on Bankruptcy, p. 386.
That the discharge is a bar to the enforcement of plaintiff’s claim against the husband personally, there can be no doubt. Plaintiff, however, here seeks to recover a joint judgment against the husband and wife under the provisions of Act No. 158, Pub. Acts 1917 (Comp. Laws Supp. 1922, §11488). A copy thereof appears in the margin.
This act
abrogates tbe common-law disability of married women to enter into certain kinds of contracts, and provides that it shall be competent for them to make themselves jointly liable with their husbands upon any written instrument executed by them both. The provision in section 2 that the instrument shall contain a statement that no undue influence or constraint has been exerted against the wife has been elimin'ated by amendment (Act No. 287, Pub. Acts 1929).
The purpose of this act is apparent. Prior to its enactment, a husband and wife whose only property interests were held by them by the entireties had much difficulty in obtaining credit. At common law, neither of them could deal with the estate so held apart from the other. Neither had any interest which could be subjected by creditors so as to affect the rights of the survivor. Under this statute, a written obligation, executed by both of them, may, after recovery of a joint judgment, entered pursuant thereto, be satisfied out of any property held -by them by entireties. The statute will be of no benefit to a creditor relying on it as a means of enforcing a joint obligation so created if the husband, by securing a discharge in bankruptcy, may deprive bim of his right to a joint judgment against them both.
The plaintiff is not here seeking to obtain a personal judgment against the husband. Under the
provisions of section 4, it is made the duty of the court to determine whether the judgment is rendered upon such a written instrument as the wife may render herself liable upon jointly with her husband, and its recital thereof in the judgment shall be indorsed on the execution, if one be issued, for the guidance of the officer making levy thereunder. Satisfaction may then be had out of any property held by them by the entireties. It is presumed that he has turned over all his property to the trustee in bankruptcy. But he had no such interest in that held by him and his wife by the entireties as rendered it subject to the claims of his creditors in the bankruptcy proceeding.
While the action is not, strictly speaking, one
in rem,
it may be said to be
quasi in rem.
In 15 R. C. L. p. 630, it is said:
“Some authorities make a distinction between actions
in rem
and proceedings
quasi in rem,
applying the latter term to suits brought against persons where the plaintiff’s object is to subject certain property of those persons to the payment of the particular claims.”
“It is true that, in a strict sense,- a proceeding
in rem
is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein.”
Pennoyer
v.
Neff,
95 U. S. 714, quoted approvingly in
Arndt
v.
Griggs,
134 U. S. 316, 326 (10 Sup. Ct. 557).
In
Cackley
v.
Smith,
47 Kan. 642 (28 Pac. 617, 27 Am. St. Rep. 311), the court said:
“Text-writers and courts make a distinction between actions
in rem
and proceedings
quasi in rem,
and the latter term is applied to suits brought against persons where the plaintiff’s object is to subject certain property of those persons to the payment of the claims asserted.
* * *
‘Indeed, all proceedings having for their sole object the sale or other disposition of the property of the defendant to satisfy the demand of the plaintiff are in a general way thus designated.’ ”
The execution of the note sued upon may be said to have been an undertaking on the part of both husband and wife that any property owned by them by the entireties might be resorted to for its payment. His interest in the property owned by them by the entireties is not a severable one. The statute simply gives the creditor a right to obtain a joint judgment which may be enforced by levy and sale of the property of which they have ownership by the entireties. It is to be presumed that it was by reason of such ownership that the credit was extended. The obligation was entered into in conformity with the terms of the statute so that redress might be had thereunder. If the discharge in bankruptcy of the husband is a bar to the recovery of a joint judgment, the statute, in many cases, will accomplish no purpose. In our opinion, the plaintiff is entitled to a judgment in form and substance as provided for therein.
We find no authority directly bearing on the question presented. Counsel do not call our attention to, nor have we been able to find, any State statute containing similar provisions. The rules announced by the courts relative to the effect of such discharges in our opinion have no application.
The judgment is reversed, and a new trial granted, with costs to appellant.
Wiest, C. J., and Btttzel, Clark, McDonald, Potter, North, and Fead, JJ., concurred.