Page images
PDF
EPUB

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ERRORS

OF THE

STATE OF CONNECTICUT.

THE STATE vs. LOREN BOSWORTH.

Hartford District, Jan. T., 1886. PARK, C. J., CARPENTER, Pardee,
LOOMIS AND GRANGER, JS.

All offenses involving continuous action and which may be continued from
day to day, may be charged as committed from one date to another.
In a complaint for cruelty to animals, one count charged the defendant
with overworking certain oxen from the first to the fourteenth day of
a certain month, and another with neglecting to provide them with
proper food and shelter for the same time. Held that each count
charged but a single offense, and properly charged it as a continuing

one.

The overworking and the neglect to properly feed and shelter cattle, may be charged as one offense.

[Argued January 6th-decided January 22d, 1886.]

COMPLAINT by a prosecuting officer of the Connecticut Humane Society for cruelty to animals, upon which the defendant was bound over by a justice of the peace to the Superior Court in Tolland County. In that court the defendant demurred to the complaint; the demurrer was overruled, and the case tried to the jury before Andrews, J. Verdict guilty and appeal by the defendant. The case is fully stated in the opinion.

VOL. LIV-1

[blocks in formation]

Stafford Savings Bank v. Underwood.

J. M. Hall and W. Bennett, for the appellant.

B. H. Bill and C. Phelps, for the State.

CARPENTER, J. The only question presented by this record which we can notice is that which arises on the demurrer. The only ground of demurrer is that several offenses are alleged in each count.

The first count charges the defendant with cruelly overworking certain oxen from the first to the fourteenth day of January, 1885. The second count charges him with neglecting to provide them during the same period with proper food, drink and protection. The third charges that during the same period he deprived them of proper sustenance.

Properly construed there is but one offense in each count. Perhaps it may be said that there is but one offense charged in all the counts. The court below must have so regarded it, as there was but one fine imposed. The gist of the offense is cruelty to animals. That may consist of overworking, under-feeding, or depriving of proper protection, or all these elements may combine and constitute the offense.

But aside from this, all offenses involving continuous action, and which may be continued from day to day, may be so alleged. This is obviously an offense of that character, and the demurrer was properly overruled.

In this opinion the other judges concurred.

[blocks in formation]

Hartford District, Jan. T., 1886. PARK, C. J., CARPENTER, Pardee, and GRANGER, Js.

A married woman can make a valid mortgage of her real estate to secure a debt of her husband.

The husband must join in the execution of the mortgage in the same way as in any other conveyance of her real estate.

[Argued January 5th-decided January 22d, 1886.]

-E

Stafford Savings Bank v. Underwood.

ACTION for the foreclosure of a mortgage; brought to the Superior Court in Tolland County, and heard before Loomis, J. Facts found and decree of foreclosure passed. Appeal by the defendants. The case is sufficiently stated in the opinion.

C. Phelps, for the appellants.

M. R. West and C. E. Gross, for the appellee.

GRANGER, J. This is an action brought for the foreclosure of a mortgage. A decree of foreclosure was granted in the Superior Court, and the defendants have appealed.

The land described in the mortgage was the estate of Emma K. Underwood, one of the defendants, who is the wife of Frank H. Underwood, the other defendant. The note secured by the mortgage was for $2,000, a portion of which ($532,) was money appropriated by the wife for her sole benefit, and the balance was a debt due solely from the husband. The note and mortgage were both duly executed by the husband and wife.

The only question is-Can a married woman mortgage her real estate to secure a debt of her husband? the plaintiff not seeking to hold the wife upon the note.

This question depends largely upon the power given to a married woman by the statute of this state, which provides. that "all conveyances of the real estate of married women, executed by them jointly with their husbands and duly acknowledged and recorded, shall be valid and effectual to transfer such estate, and all conveyances by the husband alone of the real estate of the wife shall be ineffectual to convey her interest therein." Gen. Statutes, p. 353, sec. 10.

It is manifest that under this statute the only limitation upon the wife's power of alienation of her real estate is the consent of her husband. When that is evidenced by his joining her in the execution and acknowledgment of the deed, the power of the wife to transfer her estate is perfect and unrestricted. She may convey her estate absolutely

Stafford Savings Bank v. Underwood.

and for any purpose she may desire; she may sell it for a valuable consideration, or she may give it in charity, or transfer it by the ordinary method of conveyance between husband and wife to her husband, either with or without a money consideration. The power of the wife to make an absolute conveyance under the statute cannot be doubted, and, as the greater includes the less, it must follow as a logical deduction that she has power to make a conditional conveyance and may mortgage her estate to secure any valid debt, either of herself or her husband.

In an early work on Mortgages by Powell, 1799, it is said that "if the wife joins in a mortgage of her lands and levies a fine thereof, this will be binding on her and her heirs notwithstanding the coverture. For as by such process she may make an absolute alienation of her real estate, so she may make a conditional one thereof." Powell on Mortgages, p. 737. In 2 Swift's Digest, on page 209, the law is thus stated:"A wife may join in the mortgage deed, which will be valid in the same manner as an absolute alienation, and when the wife joins with the husband in mortgaging her estate for his debt it is his duty to pay it, and her heirs after her death may apply in chancery and compel him to redeem the estate."

The statute under consideration seems to be simply an affirmance of the common law, dispensing with the machinery of fine and recovery and substituting the consent of the husband by his joining in the deed.

It appears that this statute was passed in 1723, and we think it has been the common understanding of the profession that mortgages of the same character as the one in question were good and valid. They never have been. questioned or doubted until the present case.

The statutes of 1869 and 1872, relied upon by the defendant, and the cases cited, do not appear to sustain the claim that this mortgage is invalid as against the wife. The object of these enactments was to enlarge the power of married women to make contracts under certain circumstances, but not, as we apprehend, to curtail in any manner their

Blake v. Baldwin.

power of alienating their real estate in the manner provided by the statute of 1723.

The case of Smith v. Williams, 43 Conn., 409, and the other cases cited by defendants' counsel, are entirely outside of the principles involved in this case. In Smith v. Williams the attempt was made to hold the wife's estate liable by virtue of a simple executory contract; the notes sued upon in that case were executed by her and her husband, and it was stated in them that each intended to charge their individual property for the payment of the notes. This court held that the notes not being given for the benefit of herself, her family or her estate, were not binding on her estate under the acts of 1869 and 1872.

But we do not deem it necessary to analyze further the cases cited by the counsel for the defendants. This case rests not upon the statutes last named. No liability is claimed against the wife upon the note or upon any contract outside of the mortgage deed. The rights of the parties depend entirely upon the validity of this conveyance, which we think has been shown to be clearly within the power of the wife to make, and she must be bound by it. There is no error in the judgment appealed from.

In this opinion the other judges concurred; except LOOMIS, J., who having tried the case in the court below, did not sit.

JAMES BLAKE vs. CHAUNCEY E. BALDWIN,

Hartford District, Jan. T., 1886. PARK, C. J., CARPENTER, Pardee, LOOMIS AND GRANGER, JS.

Sundry parties, some of whom had attached and others were about to attach certain personal property of a debtor, and others of whom were threatening to carry the debtor into insolvency, agreed that the property should be sold by the officer who held it, upon executions obtained by some of the parties, and that the proceeds should be divi

« PreviousContinue »