« PreviousContinue »
wife. Oregon courts have had to decide several suits where dower in an equity was the issue and they have repeatedly declared that there is no dower in an equity in Oregon,139 but the rule is that where the wife occupies the position of a quasi-creditor, as where she is suing to obtain alimony, if there is an intent on the part of the husband to defeat the wife's recovery in such a suit, or finally at his death, such a transfer as to her is fraudulent.140
CONTRACTS. A wife may contract and incur liabilities and these may be enforced against her to the same extent and in the same manner as if she were unmarried. So she may lend her money to her husband,141 employ him in a business conducted under her own name, 142 act as surety for his debts,143 separately mortgage her interest in land held in entirety,144 contract for employment, collect and hold her wages, may sell her separate property and buy other and hold it in the same manner.145 She may convey, make a transfer or execute a lien to or in favor of her husband to the same extent that she can to other persons. An unmarried woman, eighteen years of age or over, has all of the legal privileges which a man has regarding contracts and management of her property and her person.
An act passed in 1878, described the rights and fixed the liabilities of married women, and the relations between husband and wife.146 This abrogated the restrictions of English common law on a married woman's ability to act for herself. The act made a married woman liable for the debts which she had incurred before marriage, and released her from liability for her husband's separate debts. In addition, it enabled her to
, make contracts, to incur liabilities, to enforce, and to have her acts enforced against her at law as if she were unmarried. For all civil injuries which she might commit, damage might be recovered from her alone and her husband would not be liable for them, except in case
he would be jointly responsible, if the marriage did not exist. The final sections of the act made the property of the wife jointly chargeable with that of the husband for the expenses of the family and the education of the children, and for such expenses, they might be sued jointly or separately.
One might expect such joint liability to give rise to litigation, involving as it did, the question of the wife's personal responsibility for the husband's purchases. One of the questions which arose was: When are articles purchased by the husband or wife, articles for family use and when are they articles for personal use! For example, to which class does a horse buggy belong? As the Oregon law follows one of Iowa, Oregon judges have accepted as controlling their decisions, the pronouncements of the Iowa courts which were interpretations of the joint-liability law of Iowa. And so they have declared that what is a family expense, depends upon the evidence. If an article is one that is capable of being used for the benefit and enjoyment of the family and is purchased for such use, it becomes a family expense. “The statute does not say necessary expense and what is necessary, depends very much upon the wealth, habits and social position of the party. What is a family expense depends upon none of these things. Hence, the separate property of the wife is liable for the price agreed to be paid by the husband for a piano, a sewing machine or a cook stove .. but a reaping machine is not a family expense, nor is a breaking plow, but a physician's bill is, even though the wife was not the one benefited, and the rent of a house for the use of the family, and a lady's gold watch and chain may be classed as family expenses also” 147
A second question was more complicated for it involved consideration as to whether the wife's property could be subjected to the payment of a note given by her husband as evidence of his liability for arrangements made by him for family supplies. The court held that the wife was not liable for the note, but was liable only on the original account.148 And in another case, a wife was held not liable on a contract based on an aceount
between the husband and the plaintiff, to which the wife did not give assent.149 Finally in a divorce suit, the judge declared that the law that a husband and wife may be sued jointly for family expenses was for the protection of creditors only and did not change the common law duty of the husband to maintain his wife and to provide the family necessaries as between them.
An amendment to the act was passed in 1923 which provides151 that in cases where it is sought to hold the wife responsible for family expenses, either jointly or separately, the action against her must be commenced within two years after the cause of action has accrued; furthermore, after a divorce, the wife is not to be held responsible for debts or family expenses contracted by the husband while they were living together; likewise, after the wrongful and wilful separation or abandonment of the husband by his wife, the husband is not to be held responsible for the debts contracted by the wife consequent to such abandonment except for the maintenance, support and education of the minor children of both parties.
HOMESTEAD EXEMPTION. The Oregon law exempting homesteads from sale on execution from the lien of every judgment, as first passed in 1889, was called by one of the Justices of the State Supreme Court the “best intended and worst drawn law on the statute books' 152 The law in question provided that the homestead of any family should be exempt from judicial sale for the satisfaction of any judgment to be obtained in the future, but this homestead must be the actual abode of and owned by the family.153 The section which gave the judges trouble when suits were brought under this law was the second one which provided that the homestead was to be exempt from sale after the death of the person entitled to it, for the collection of any debts for which the homestead could not have been sold during his lifetime “but such homestead shall descend as if death did not exist”. In this last phrase the words were meaningless in them
selves to the court, and so it was held154 that by some inadvertence in the writing of the law, the word “death” had been inserted when “exemption" was intended; the effect of the second construction, so the court said, 155 was that the property descends to the heirs subject to the widow's right of dower and is exempt from execution for previous debts of the deceased.
In 1910, in a case already mentioned,158 the court said further, that the homestead statute is a statute only of exemption and contains no other elements. It does not create a homestead in which the wife and child have any right and title other than that of the owner, to claim it exempt from attachment. There is no provision against a conveyance or incumbrance by the owner except that it be exempt from execution and sale in a mortgage in which husband and wife did not join.
Moved by the vagueness of the law probably, the legislature in 1919157 revised the homestead exemption statute as follows: “The homestead shall be exempt from sale on execution
for the debts of the owner to the amount in value of $3,000”. The homestead must be the actual abode of and occupied by the owner and his spouse and such exemption is not to be impaired by the temporary removal with the intention to reoccupy, nor by sale to the extent of not exceeding $3,000 while held to procure another homestead for a period not exceeding one year.
The homestead when not located in a town set off into blocks and lots, might consist of any quantity of land not exceeding 160 acres; and in a town, not to exceed one block, provided that it did not exceed in value $3,000. Mechanics’ liens for work, labor, or material done or furnished for the improvement of the property, or purchase money liens, or mortgages lawfully executed, were not barred by the act.
The descent of the homestead in the case of an owner dying intestate was to follow the law of descent of real property, except that the exemption should not extend to any other than the child, grandchild, widow or husband, and father or mother of the deceased owner, and the homestead might be charged with the expenses of the last sickness of the owner, the funeral, and the cost of administration.
Various decisions of the Supreme Court in suits brought before revision of the act in 1919, tried to give some meaning to this "worst statute", as in the case cited above, where the court declared “the term 'homestead' as used, is not the designation of a particular estate implying prohibitions and limitations not incident to ordinary titles, but only means “the home place' of 'the house and adjoining grounds' where the head of the family dwells.” And again, the homestead exemption may be waived or relinquished by abandonment or conveyance, so that the property will be subject to levy and sale under execution upon a judgment had against the owners,168 for a “homestead is purely statutory
and the right to it does not exist ipso facto" 159