Phillips v. Phillips

Mortgage—Husband Agent for Wife in Negotiations—Agreement for Forbearance of Foreclosure—Wife Charged With Knowledge.-—-A husband, who acted on behalf of his wife in the negotiations' with the mortgagee for the giving of a mortgage on her separate property, which she afterward joined with him in executing, was her ostensible agent in the matter, and where, as part of the transaction, the mortgagee executed and delivered to the husband a collateral agreement forbearing to enforce the mortgage until the happening of a contingency subsequent to the maturity of the indebtedness secured, she was charged with knowledge of such agreement and of its contents.

Id.-—Facts Putting Wife on Inquiry—Knowledge Ascertainable by Inquiry.—The facts that the mortgage was executed by the wife and her husband to secure a larger indebtedness than they then owed the mortgagee, and that it was antedated to correspond with a date when the husband was conducting the negotiations with the mortgagee, was sufficient to put her on inquiry of her husband, from whom, by asking, she might have learned that the mortgage was given in part for future advances, and that the mortgagee had formally agreed to postpone the collection of the indebtedness secured thereby.

Id.—Notice of Forbearance Agreement—Ratification of Act of Agent.—The wife, having knowledge of circumstances sufficient to put a prudent person upon inquiry, had constructive notice of the agreement of forbearance, and must be held to have ratified the acts of her assumed agent in accepting its delivery by the mortgagee.

Id-.—Action of Foreclosure—Pleading—Insufficient Denials of Agent’s Acts.—In an action to foreclose such mortgage allegations in the answer of the wife denying on information and belief that the mortgagee, made, executed, or delivered the forbearance agreement to herself and her husband, but positively denying that he delivered it to her or to her and her husband at her request, do not amount to a denial that the document was delivered to her husband acting for her, or negative in any way the presumption of her full knowledge of the transaction.

Id.—Conduct Estopping Wife from Pleading Statute of Limitations. The wife, by accepting the benefits of the contract, and by her actions and those of her husband, as her agent, lulling the mortgagee into assumed security and causing him to postpone foreclosure until the expiration of the period mentioned in the forbearance agreement, was estopped from setting up the prior bar of the statute of limitations.

Id.—Advances by Mortgagee for Taxes and Assessments—Payment Through Agency of Mortgagor.—Moneys advanced by the mortgagee to one of the mortgagors, at the request of the latter, for the express purpose of paying taxes and assessments on the mortgaged premises, and so applied by such mortgagor, are recoverable in an action to forclose the mortgage, under a provision thereof authorizing the inclusion in such action of “all payments made by the mortgagee for taxes and assessments.” In so applying the moneys advanced, the mortgagor acted as the agent of the mortgagee in paying the taxes and assessments. The fact that the other mortgagor had no knowledge of such payments is immaterial, where the mortgage did not provide that notice should be given to either of the mortgagors in case the taxes or assessments were paid by the mortgagee.