146
.',1 .;
FEDERAL REPORTER.
until that couitshall give an authoritative construction to the statute, which will be adopted by us as the rule of decision here. If complainant does not adopt this suggestion the motion to dismiss will be sustained.
ORANGE NAT. BANK
V.
TRAVER' and Wife.
(CircUit (Jourt, D. Oregon. May 16, 1881.) 1. FOREIGN CORPORATION. The Oregon act, (Or. Laws, 617,) prohibiting a foreign corporation from" transacting business in this state" untHlt appoints a resi· dent agent therein, was not intended to prevent such corporation from maintaining a suit in the state courts, and it is not in the power of the state to prevent it from maintaining a suit in this' court. 2. SAME.
A corporation, formed under "the national banking act," is either a citizen of the United States only, or a citizen ,of the state where it is organized and located. If the former, it is not .a foreign corporation in this state; if the latter, it is a foreign corporation, but for that very reason may sue in the national courts herein, irrespective of the state legislation. 3. SEPARATE PROPERTY OF MARRIED WOMEN.
A debt contracted by a married woman is, in equity, a charge upon her separate estate; but, if contracted as surety for the benefit of another, the authorities are in conflict whether it creates such a charge, unless her intent to have it produce such effect is expressed in the contract; but, in either case, a note given by the wife for the debt of lier husband, with a stipulation that the note is taken by payee "on the credit" of her separate estate, is sufficient evidence of her intention to charge her with thepayuient of such debt. .
In Equity. Suit to enforce a charge upon Ii wife's separateestate. Demurrer to answer. David Goodsell, for plaintiff. Ge01'ge H. Durham, for defendant. :DEADY, D. J. On December 21, 1877, the defendants, George W. Traver and Emma S., his wife, made their two joint and several promissory notes at Portland for the sum of $600 each, payable, with interest at the rate of' 3t Pl:l! .centur:l per annum, to Johnson, Clark &, Co., or order, at the
ORANGE NAT·. BANK V. TRAVER.
147
First Nationll.l:Bank, Portland,-one in 18 months and thj), other 24 mpD,t4B after date. Each of the notes contained the following stipulation: . "ThiS· obligation is given for the benefit of George W. Traver and Emma S. Traver, and taken on the credit of the separate estate .of Emma S. Traver and the property of George W. Traver."
Before maturity the notes passed by indorsement into the hands of the plaintiff, who brought this suit in the state cir. cuit court against the husband and wife to subject certain real property, in this city and county, and now, and at the date of said ·notes, belonging to the latter "as her own statutory separate property," to the payment of the amount due thereon, alleging the insolvency of the husband. The defendants and answered separately, and then caused the suit to be removed to this court. The answer of the wife, among other things, contains the following defence: That the defendant, at the date of said notes, was the Wife of her codefendant, George W. Traver, and signed them II as surety for husband only:" that no part of the consideration thereof was paid to her, 01' enured to her benefit, or that of her estate: that said notes were given for a pre-existing indebtedness incurred, " in part at least," prior to her mar· riage with said Traver.
,-
To this defence the plaintitl demurs for insufficiency. Upon .the argument. of this demurrer, the question was also made and submitted by counsel: Can the plalntU! maintain this suit without having first complied with sections 8 and 9 of the act of October 24, 1864, (Or. Laws, 617,) concerning foreign corporations II trausacting business in this stateY"
Upon the argument of a demurrer, the court will, notwith. ing the insufficiency of the pleading demurred to,· give judg. ment against the party whose pleading is first defective in substance, (1 Chit. Plead. 707;) and as it does Dot appear from the bill that the plll.jntiff· has complied with such act, the point maybe considered and decided upon this demurr lr to the defendant's plea. In support of the negative of thig question counsel cite In rc.Comstock, 3 Sawy. 218, and Be1/k ple v. Bank of B,C. 5 Sawy. 88, in which this court held that a. foreign corporation is not authorized to transact business in this without first appointing a resident agent, upon
FEDERALBEPORTEB.
whom process may be served in actions against it, as provided in said act; and that acts done by it without such appointment are void. But the "business" which the plaintiff is prohibited from doing in this state is that of banking, which does not,in my judgment, include the right to follow its debtor here and sue him in the courts of the state. Such an act, although strictly speaking it might be included in the phrase "transacting business in 'this is certainly not within the mischief intended to be prevented by the statue, and .therefore I do not think it ought to be so construed' 8S to prO'hibit it. And such was the conclusion' of this conrt in the case Of the N. W.Mut. Life Ins. Co v. Elliot, Dec; 28, 1880.Ample provision is otherwise made bY'the ,state for the protection of its citizens who may be involved in such litigs.tion, in the provisions of its statutes requiring non"r8Sident' plaintiffs to give security for costs, and for all dam.caused ,by an or it c.li\.nbe allowed.. , ", ' ,But"the plaintiff, if a foreign ,corporation ,at all, isa oitizen of Massachusetts, the place of its organization' and business, and iB"therefore' eniitled,undet ,the constitution and la.ws of the United States',' to sue in this court, on of its citizenship; and this right cannot be limited or :restrained by the state. ,Cowlesv.Mercer Co. 7 Wall. 121. ,But whether this suit, in this respect; should now be conaideredas one brought in this court may be question i yet I think it should. Although commenced in the'state court, it has been' removed to this,and that by the act of the defendants, whioh itself is an assertion by them that the plaintiff may lawfully sue or be sued in this court. Again, the plaintiff is a corporation not formed under the but under a law of any state of the union or law of the United States,-the national banking act of June 3, 1864,-but located at Orange, Massachusetts. It has finally settled that a suit in a national court by or against a corporation, for the purpose of jurisdiction, is
a
.5 FED. REP. 225.
ORANGE NAT. BANK V. TRAVER.
149
to be conclusively presumed td be a suit by or against citi. zens of the state under whose laws such corporation was formed; and therefore it is deemed a citizen of the state which created it. O. <f. M. Ry. Co. v. Wheeler, 1 Black, 295; Cowles v. Mercer Co. 7 Wall. 121. Strictly speaking, then, the plaintiff is a citizen of the United States, but not of any state. Still, the plaintiff, though organized under' a law of the United States, is by such organization ,and law in the state of Massachusetts, and by a parity of reasoning its stockholders may be presumed to be citizens of said 'state, and the corporation be entitled to sue and be sued as a citizen of Massachusetts. ,This is the'concll!lsionreached by Mr. J us.tice Blatchford, after a ,thorough invlilstigation of the BubJ ject, in the Manuj''I'8 N. B. ofChicagoiv. Black, And, doubtless,the plaintiff is a foreign :corporation, within the mischief sought to be remedied by the act of Octo'ber 24; supra, and ifdt is held :to be a. citizeno£' Massachusetts it must be so regarded. ! ' " But, admittingthis,'I do not 'think the local statute,:should be construed ,so:,as to: prevent 8;' foreign corporation from a suit in th(l sta,te court, and ,it 'is very,clear that the state cannot prevent 8uqhcorporation from'maintaining a suit in this court. Upon the' showing: in the billthsiplaiintiff is entitled to sue in this .orthe state court. tracts were made in 1877, the act of Octdoor 91,1880, (Sess. Laws, 6, entitled "An a.ct to establish and protect the rights of married women,") which is supposed i to have altogether relieved the wife from the "disabilities" or protection, as this case. By the case may be, of coverture, does not marriage, at common law, the property of the wife became that of the husband-the absolutely, and the realty during the marriage. But, in time, the doctrine was established in equity that the wife could hold property to her separate use and benefit, and this has, in effect, become the fundamental law of this state. Or. Const. art. 15, § 5. With the capacity to acquire and 'hold property to her separate use, she WitS allowed to ha.ve the power to dispose of the same as if she were unmarried, unless the instrument or means
150
whereby she acquired the title provided otherwise. Dederer, 18 N. Y.265.
Yale v.
Out of this general power of disposition naturally grew the lesser one....:.....the power to charge her separate estate with a specific debt or engagement for her own benefit or that of another. In this way the disability of coverture, as to her separate property, was practically removed; but her contracts were still invalid, except so far as they might affect such property, and she is not liable upon them personally, either at law or in equity. Whether a wife has charged her separate estate with a debt or engagement in a particular case is a question of evidence, it being the generally.conceded rulethat if the same will enure to the benefit of herself or her separate estate, that she is presumed to have intended to so. charRe it. But where this is not the effect of the transaction, but the debtor engagement is incurred or made for thebenefit of another, the authorities are in conflict as to the necessary evidence to establish her intention to charge her separate estate therewith. By the English and a majority of the American authorities it is held that if a wifecont act in wl'it"ng, so as to satisfy the statute of frauds, to. pay a sum of mont'y, either as principal or surety, for her own benefit or that of another, it is sufficient evidence of her intention to charge her separate estate, and will create & charge thereon 1hat may be enforced in a court of equity. Bish. Law of M. W. § 870; Bull v. Kellar, 13 B. Mon. 381; Deering v. Boyle, 8 Kan. 525; Todd v. Lee, 15 Wis. 401 ; The M. B. of St. Louis v. Taylor, 62 Mo. 338; Williams v. W'instOlt, l) Rep. 418, (8. C. of Ohio, 1880.) But in other states, and notably in New Yorlr, it is held that the debt 01' engagement of the wife, the consideration for which does not enure to the benefit of her separate estate, does not create a charge upon said estate, unless her intention to do so is declared in the very contract which is the foundation of the charge. Yale v. Dedere1', 18 N. Y. 265; 8. C. 22 N. Y. 450;S. C.68 N. Y. 324; iV'fanhattan B. & M. Co. v. Thompson, 58 N. Y. 80; The C. E. Ins. Co. v. Babcock, 42 N. Y. 614.
ORANGE NAT. DANK V. TRAVER.
151
The supreme court of this state has not passed upon the questi()ll. It is obvious that the rule established in New York by the decision in Yale v. Dederer, supra, is a departure from the current of authorities on this subject j but, as an original and correct exposition of the elementary principles of law applicable to the question, it commends itself to my judgment. Whoever takes the signature of a married woman to an obligation, given for the benefit of her husband or another, knowing that such signature is void as to her personally, but expecting to rely upon her separate estate for its fulfilment, ought to have her declaration therein to theeffect thl:tt she signs the instrument with such intention and understanding. But, even upon this view of the law, I do not see how the stipulation.in these notes can be otherwise construed than as. manifesting the intent and purpose of the wife to charge her separate estate with the payment thereof. It may be admitted that the representation therein that the obligation given for her benefit is false, and that she is not estopped to show it. Big. Estop. 276, 485. It may also be admitted that the stipUlation would have been more explicit and in hetter,form if it had stated ,that the wife gave the obligation with the intention to:charge her separate estate therewith, rather than that the payee took it "Uu credit" of said estate. But, considered as itis, there can be no doubt about its meaning and the intention otthe parties thereto. It is expressed that the payee took the obligation "on the credit of the separate estate" of the wife, 'ahd if she, knowing this fact and signing the instrument with this declaration in it, really intended otherwise, asahe avers, then she contemplated a fraud which she cannot be heard to allege against the plain import of her own agreement to the eontrary. There is no set form of words necessary to manifest the wife's intention to create the charge npon her estate. It is sufficient if it fairly appears from the language us'ed, uhder the circumstances, that such was her intention. She this obligation to pay her husband's debt with the express understanding that it was accepted by the creditor upon the {jredit of her separate Elstate, and the only inference from this
152
fact, compatible with her honesty, is that she so intended it. This undertaking may have been an unwise one on her part. But, where the law gives the wife the power to contract as a feme sole, it will hold her to a like obligation to perform, regardless 0{ the consequences to herself or her estate. The demurrer is sustained.
FmsT NAT. BANK
OF
UTICA
'V.
WATERS and another. May 10, 1881.)
(CzrC1J,it Court, N. D. New York. 1. NATIONAL BANxs-TAXATION-REv. ST. §
5219. The exemption from taxation of the shares of various corporations, under the provisions of a state statute, does not exempt" moneyed capital in the hands of individual citizens," within the meaning of section 5219 of the Revised Statutes, relating to the taxation of na· tional bank shares. The omission of a city clerk to extend upon the assessment roll the amount to be paid by each shareholder, until after such roll has been delivered to the city treasurer, does not render the taxation of such shares void.
2. SAME-ASSESSMENT ROLL-CLERICAL OMISSION.
3.
SAME-TAX t)OLLECTOR-WARRANT.
In such case, therefore, the tax collector is protected by his warrant, when both such warrant and assessment were apparently regular when they came to lus hands.-[En.
In Equity. Miller IX Ji'inke and Ward Hunt, Jr., for complainant. Alfred O. Ooze, for defendants. WALLACE, D. J. The complainant moves for a preliminary injunction to restrain the defendants from the collection of taxes assessed against its several shareholders, on the ground -First, that the laws of this state impose one rule of assessment and taxation upon shareholders in corporations other than banking associations, and another upon banks, whereby a higher taxation incidentally'rests upon the latter, and as to . the shareholders of national banking associations thereby violates the rule of uniformity prescribed by section 5219, Rev.