Myers v. McDonald

27 Iowa 391

• Court: Supreme Court of Iowa
• Decided: June 25, 1869
• Status: Published

Opinions

Dillon, Ch. J.

i. husband and o7ivife4apl'opy eity' ‘ There is no suggestion or claim on behalf of either party that the colt in controversy does not, as respects the rights and liabilities 'of the parties, take the place of the mare by which it was foaled.

The material facts may be briefly stated.

1. That the colt is, as respects the husband, the property of the wife, and not his. This, though disputed by the defendant’s counsel, is found to be the fact by the Circuit Court, and the evidence, which we have examined, sustains this finding.

2. No notice of the wife’s ownership of the mare or colt was ever filed for record.

3. It is not shown that Robb, the creditor, represented by the defendant as sheriff, had actual notice at the time he acquired the note that the mare was the property of the wife.

4. The original debt to De Tar was contracted before the purchase of the mare by the wife.

5. The mare and colt were left in the possession and under the control of the husband, and the mare was so in his possession and control at and before the time when Robb purchased the note against the husband.

6. Though Robb, at the time he purchased the note, had no actual notice of the rights of the wife, yet the sheriff was notified of her right at the time he went to make the levy and before the levy was made.

At common law the superior right of the defendant would be indisputable. The wife’s right is based wholly upon the statute. If that gives it she has it, otherwise not. Her claim is to a specific article of personal property as being exempt from her husband’s debt. The statute (Rev. eh. 101) points out the method by which such exemption may be secured. Section 2502 of the Revision, copied in the statement, is the one whose construction is involved in the cause before us. This is of course to be read in the light which its associate sections shed upon it.

The mare and colt were left under the husband’s control ; and there is no evidence that Robb, at the time he became a creditor of the husband, had any knowledge of the real ownership of the property.

Section 2502 applies to such a case, and provides that the property may be exempt from the husband’s debts, if, before it is levied upon, notice of the wife’s ownership is filed for record.

No other notice is provided for; and this mode, to wit, the filing of such a notice, is the only mode prescribed by the statute by which the right of the wife as against the husband’s creditors can be protected.

The last sentence of the section (2502) is in the nature of an exception. And. the exception is, that “such notice,” that is, a written notice filed for record, “ shall not exempt her property from liability for his debts contracted after it was left under his control and before the filing of the notice aforesaid, except as against those having knowledge of her rights.”

Respecting this last sentence two views are pressed. 0ne is that this contemplates that a written notice shall .. be filed for record in all cases, and that actual knowledge "of the wife’s ownership by the creditor will in no case avail any thing to the wife, unless she has filed a written notice of her rights. The other view is that' actual notice of the wife’s rights will dispense with the necessity of her filing for record a notice of her ownership.

The court do not entirely agree respecting this point; and the present case can be ruled without conclusively passing upon it.

A majority of the court are of opinion that, under the facts of this case, viz. : want of actual notice by Robb, at the time he acquired the note of the wife’s real ownership, and the total absence of any notice of record of her rights, that the property was liable to be seized and sold for her husband’s debts.

Where no written notice has at any time been filed for record, the opinions of the different judges upon the statute are not entirely concurrent.

4. —^notice ersiip. Where the husband is in debt, and the wife leaves specific articles of personal property under his control, record notice is, according to the opinion of Mr. Justice Wright and Mr. Justice Beck, in all cases, essential to protect the interest of the wife. This view rests upon the argument that even such creditors' may be deceived and delayed in the assertion of their rights by the apparent ownership of the husband, and upon the further ground that this is the mode, and the only mode, provided by the statute for the wife’s protection.

Cole, Justice, dissents, basing his view upon the proposition that actual notice is equivalent to record notice, and that actual notice is contemplated by the statute (latter part of § 2502); that, as to prior creditors, that is, creditors who became such before the wife purchased the property, and before it passed under the husband’s^ control, it is sufficient to give actual notice of the wife^ rights at any time before the property is levied on fo| the husband’s debts. h ],4^il

Dillon, Chief Justice, without giving any opinion on the point as to which Justices Wright and Beck concur^ is of opinion that where the creditor, at the time he becomes such, has no actual notice and no record notice of the wife’s rights, no subsequent actual notice can affect him, and he regards Bobb as becoming a creditor at the time he purchased the note, and as having, so far as the statute under consideration is concerned, all the rights that he would have had if, instead of buying the note, he had, at that time, extended credit to the husband ■without knowledge of his wife’s rights.

In this view, as to Bobb, being in effect a new creditor, as being “ a third person acting in good faith,” as of the date of his purchase of the note, Wright, J., concurs: Cole and Beck, JJ., are of a different opinion as to Bobb becoming a new creditor.

The purpose of the statute, as disclosed by the language of each section relating to the rights of the wife, is so manifest in subordinating her rights to those of third persons acting in good faith ; to the rights of persons becoming creditors without the knowledge of her latent ownership of property used and controlled by the husband, that it is not deemed essential to enlarge the discussion.

The result is that a majority of the court are of opinion that upon the facts found the law is with the defendant, and the judgment of the General Term will be reversed and the cause remanded, with directions to the Circuit Court to enter the proper judgment for the defendant. Cole, J., dissenting.

Reversed.