Spear v. Ward & Wife
Before: Cope, Field, Norton
Synopsis
The act concerning conveyances authorizes a married woman to execute a mortgage upon her real property without restriction as to purpose or person, and she may execute it for her own debt, or for the debt of her husband, or of any other person, subject to no other restraint than that imposed by the requirement of the joint execution of her husband.
Where the wife executes a mortgage upon her separate property for the debt of another, whether that other be her husband or a stranger, she becomes as to that debt a mere surety, and is entitled to all the rights and privileges of that character.
Where a bond is given in the usual form, expressing the personal obligation of the husband alone, and in connection with it, a mortgage in the usual form executed by the husband and wife, purporting to cover the separate estate of the wife as well as the interest of the husband in the premises mortgaged, the transaction will, upon its face, create the presumption that the wife is a mere surety for the husband's debt.
The presumption of the suretyship of the wife may be repelled by proof aliunde, showing that the debt secured was created for her benefit or that of her estate; and on like grounds, the presumption will be destroyed by a recital in the mortgage of a fact inconsistent with the theory that the wife contracted as a surety.
The wife being empowered to execute a mortgage, is prima facie bound by the clause stating the consideration of its execution. Such clause, subject to certain qualifications, is open to explanation and may be varied by parol proof; but in the absence of such explanation or proof, the clause is deemed to express the true consideration.
W. executed a bond to S., conditioned for the payment by him of six thousand dollars in one year with interest; and at the same time, as security for its payment, W. and wife executed a mortgage upon the separate property of the wife, which mortgage recited as the consideration of its execution the receipt of six thousand dollars by the mortgagors, “ and each of them.” In an action by S. to forclose the mortgage, the wife defended upon the ground that she was a mere surety for her husband, and that the liability of her property had been discharged by an extension of the time of payment given by S. to her husband. By the pleadings, the extension of time was admitted, and the question of suretyship put in issue, and the cause was submitted without the introduction of other proof than the bond and mortgage: Held, that the property of the wife was bound by the mortgage—that she was not a surety for her husband, the recital as to the consideration meeting and countervailing the effect which would otherwise have arisen from the form of the transaction.
A general guardian of an infant has authority to institute an action on behalf of his ward, and where the body of the complaint shows the general guardianship of the plaintiff, a mistake in the designation of the plaintiff as guardian ad litem in the title of the action is one of no importance.
Field, C. J. delivered the opinion of the Court—Cope, J. and Norton, J. concurring. This is an action to foreclose a mortgage executed to the plaintiff in February, 1854, by the defendants, John B. Ward and Maria, his wife, upon the separate property of the wife, to secure the bond of the husband of the same date. The mortgage states as the consideration of its execution the receipt of $6,000 by the mortgagors, “ and each of them,” and the bond of the husband is conditioned for the payment of the $6,000 in one year, with interest at three per cent, a month.
The plaintiff is a minor, and Davis, by whom he appears in the action, is his general guardian. In the title of the action Davis is designated as guardian ad litem, but in the body of the complaint he is described as the general guardian of the plaintiff. „
Upon the bond, partial payments of interest were made until April, 1858, when an accounting was had between Ward and Davis, and a balance found due the plaintiff of about $13,000. It was then agreed between them that the interest on the balance should be reduced to one per cent, a month, and the payment of the balance be extended to February, 1859.
As a defense to the foreclosure, the defendant, Mrs. Ward, who alone answered upon the merits, contends substantially as follows: first, that the debt for which the bond was given, and to secure which the mortgage was executed, was the debt of her husband, and that by the execution of the mortgage upon her separate property she became merely surety for him; second, that the contract extending the time for the payment of the balance due on the bond was made without her knowledge or consent, and in consideration of the guaranty of the amount due by a third party; and that by it her separate property was discharged of the lien of the mortgage; and third, that the action was improperly brought, inasmuch as Davis was not appointed guardian ad litem, as designated in the title, before the action was commenced.
The only proof offered in the case was the bond and mortgage. [674]For the facts, upon which the defense chiefly rests, reliance is placed upon supposed admissions of the pleadings.
The Act concerning Conveyances authorizes a married woman to execute a mortgage upon her real property, without restriction as to purpose or person. (Secs. 19 and 36.) She may execute it for her own debt, or for the debt of her husband, or of any other person. The only restraint attempted upon her absolute power in -this respect, results from the requirement of the joint execution of her husband. But when she executes a mortgage upon her separate property for the debt of another, she becomes as to that debt a mere surety. She is not, it is true, personally bound, but her jxroperty is; and there is no distinction, in principle, between pledging one’s personal responsibility for the payment of a debt, and pledging one’s property for that purpose. And her character as surety is not affected by the fact that the debt secured is that of her husband. Her separate property cannot be reached without her consent for his debt, nor can its rents or profits. (George v. Ransom, 15 Cal. 322.) With respect to such debt, she holds her property as absolutely free as though she were a femme sole. (Neimcewicz v. Gahn, 3 Paige, 614; same case in Court of Errors, 11 Wend. 318.) As surety for the debt of her husband, she is entitled to all the rights and privileges of that character. The principal question, then, for consideration in the present case is, whether the debt for which the bond was given, and the mortgage executed, was the individual debt of the husband. The complaint alleges that the bond was given for moneys received by the mortgagors, “ and each of them.” The answer denies the allegation, and avers that the bond was given for the individual debt of the husband. The affirmative allegation does not constitute new matter to which a replication was necessary. No evidence was given on the subject, and the question, therefore, rests for its solution upon the form of the bond and mortgage, and upon the recital in the latter. The bond is in the usual form, expressing the personal obligation of the husband, and conditioned upon Ms payment of $6,000 in one year, with interest at three per cent, a month. It shows upon its face an individual debt of the husband, and nothing else. The mortgage is also in the usual form of such
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