Pfeiffer v. Riehn

California Supreme Court Jul 1, 1859Published

Before: Baldwin

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Holding. The court affirmed the decree of foreclosure, holding that the jury's verdict was supported by the evidence and that the wife was bound by the original judgment after being served with process. The court further held that a mortgage on a homestead is valid even if the underlying note is void as to the wife, and that the legislature has the authority to regulate the sale of homestead property.

Issues

Whether a mortgage on a homestead is valid if the underlying note is void as to the wife.
Whether the Constitution prohibits the forced sale of a homestead via a decree of foreclosure.
Whether a wife is bound by a judgment after being served with process despite claims of excusable negligence in failing to present a defense.
Whether a County Recorder has the authority to administer oaths for the verification of an answer.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Even if the note of the wife is void as to her, it was good as to the husband, and the property is bound by the mortgage, independent of the note of the wife—if otherwise valid.”

“Having been served with process, the wife was bound by the judgment in the first suit.”

“The Constitution is inoperative of itself, and looks to legislation; and in acting upon this subject, it was a matter entirely within the discretion of the Legislature to determine how far, and in what manner, the homestead should be protected.”

Synopsis

Iir an equity case, submitted by the Court to a jury, this Court mil not review the testimony, if any proof sustains the verdict and judgment.

A jurat to an answer, is, in form and substance, an affidavit, and may be taken before a County Recorder.

Where husband and wife execute a note and mortgage, the note is good as to the husband, even if void as to the wife; and the property is bound by the mortgage, independent of the note of the wife.

Carey v. Tice, (6 Cal. 639,) that the Legislature may determine in what manner and how the homestead is to be protected, affirmed.

In a mortgage of the homestead, the premises need not be described as the homestead.

Where the jury and Court are satisfied that the wife understood English, at the time of executing and acknowledging a note and mortgage upon the homestead, there was no necessity for an interpreter to explain the contents of the mortgage.

In a foreclosure suit, on a note and mortgage of the homestead, executed by husband and wife, the wife alone answered, but did not verify her answer. On suit brought to vacate the decree rendered in the foreclosure, the wife, having been served with process, cannot complain that her answer was not verified. And her failure, by excusable negligence, to make defense to the foreclosure, is no ground to vacate the decree, if it be shown that in fact she had no defense.

A decree, in an equity case, is not vitiated because based on the verdict of a jury, even though it might have been made without a jury.

Baldwin, J. delivered the opinion of the Court Terry, C. J. concurring.

This bill was filed by the female plaintiff, in conjunction with her husband, to set aside a certain decree for the sale of property which she claims as homestead, situate in San Francisco. This lot was sold on a decree for the foreclosure of a mortgage, which was executed to Riehn by Pfeiffer and wife, in the form required by statute. The female plaintiff charges that she was ignorant of the English language. That she was requested by her husband to sign a note, and a mortgage to secure it, on this property, which she did without knowing the contents; that the mprtgage pui’ports to be acknowledged before one Moore, Rotary Public, the certificate being in the usual form, but she denies the truth of the facts therein stated—as the examination and her being made acquainted with the papers. The same averments are made in relation to another mortgage.

Bill avers that defendant, Riehn, in January, 1857, commenced an action for the foreclosure of his mortgage against the plaintiffs, etc. The summons was returned as executed on them the 21st January, 1857; that neither of the defendants, except the female plaintiff, answered, and, on the 20th June, 1857, a default was entered in the Clerk’s office against all the defendants except the female plaintiff. That, on the 10th February, 1857, she filed her answer, signed by a law firm, denying the execution of the note and mortgage, and claiming a homestead. On the 27th June, 1857, a verdict was returned for the plaintiff.

She avers, that, at the time she received the summons from the Deputy Sheriff, she handed the same over to her husband as [648]a matter pertaining to his business alone; and, at the time of the trial, and for a long time before, she was sick; that she was dependent on her husband to employ counsel and defend the suit, etc.; that he employed one Parker, but never told him of the defense as here set up. Parker accordingly did not set up any such defense. She is advised that the answer^—denying the execution of written documents on which the action was founded—not being verified was a mere nullity; that no Attorney was present at the trial; avers that the consideration on which the mortgage was given was a mere nullity—it being a joint note of her and her husband; that she could make no joint contract except as connected with her separate estate—which this was not.

Bill prays that the verdict may be set aside and the decree-of foreclosure entered thereon opened up, and plaintiff admitted to make a defense, etc.

Pfeiffer v. Riehn

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