Lynch v. Moser

Andrews, C. J. The complaint shows that on the 31st day of May, 1890, Mary E. Van Sciver was the owner of certain land in Norwalk which had been conveyed to her on her personal credit and which she had purchased as her sole and separate estate. In payment of a part of the purchase price of said land she had given her own note for $2,000, and secured the payment of the same by a mortgage of the land. The plaintiff is now the owner of the said note and mortgage. About the first day of May, 1893, the said Mary E. Van Sciver and the defendant William Moser entered into an agreement in writing, by which the said Mary promised to sell and convey the said land to the said William for a certain price therein indicated, which price the said William promised to pay; a part of the said purchase price to be paid by his assuming the said mortgage to the plaintiff and prom *719 ising to pay the note secured thereby. At a later date, to wit, about the 15th day of May next thereafter, in pursuance of said writing and in the performance on her part of its stipulations and at the request of the said William, the said Mary conveyed said land to Minnie Moser, the wife of the said William, by a warrantee deed excepting the mortgages thereon. In her deed the mortgage to the plaintiff is specified and the instrument provides that such incumbrance “the said grantee hereby assumes and agrees to pay, as far as it is a legal lien upon said premises, as a part of the purchase price of said premises.” At all these dates Mary E. Van Sciver was a married woman, married prior to 1877. The mortgage deed to the plaintiff’s assignor was not signed by her husband. Her deed to the defendant was executed by her and her husband together. Upon these facts the defendant insists that the complaint is insufficient, and that the Superior Court erred in granting the plaintiff’s prayer for a foreclosure. One or two preliminary observations will help to make clear the discussion of this claim. The deed to Mrs. Moser was made at the request of her husband and in the performance of a written agreement which he had entered into. She must therefore be presumed to have had knowledge of and to be bound by all the stipulations and promises in that agreement. That agreement is not merged in the deed, for the reason (1) that the parties to the deed are not the same as were the parties to the agreement; and (2) because a deed of land is intended to convey the title to the land, and is not intended to express the contract between the parties in pursuance of which the deed is given. Collins v. Tillou, 26 Conn. 868; Haussman v. Burnham,, 59 id. 117 ; Hall v. Solomon, 61 id. 476; Caulfield v. Hermann, 64 id. 825. According to these authorities the trial court, in passing upon the sufficiency of the complaint and upon the plaintiff’s claims for relief, was bound to consider the agreement between William Moser and Mrs. Van Sciver, as well as the deed from Mrs. Van Sciver to Mrs. Moser. Considering both these papers, the trial court had the case where property was *720 conveyed to a married woman upon her agreement to assume and pay, as a part of ‘the consideration for said conveyance, a certain note and mortgage which was specifically named, and being so specifically named was specifically assumed ; and then there was a specific promise to pay it. There was an agreement in writing for a good consideration to assume a mortgage. As against Mrs. Moser the mortgage so assumed became a good mortgage. It was in equity the same as though she had herself given the mortgage. The case so presented comes fully within the decision of this court in Hall v. Hall, 50 Conn. 104. In that case land was conveyed to a married woman upon her promise to give a mortgage to secure certain notes. The wife afterwards refused to unite with her husband in giving the mortgage. This court held that, under the circumstances stated, the agreement to give the mortgage was in equity to be treated as though it was a mortgage. The court said: “ This seems to be a proper case for the application of the maxim that equity looks upon that as done which ought to have been done. ‘ The true meaning of this maxim is, that equity will treat the subject-matter, as to collateral consequences and incidents, in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been; not as the parties might have executed them. . . . The most common cases of the application of the rule are under agreements. All agreements are considered as performed, which are made for a valuable consideration, in favor of persons entitled to insist on their performance. They are to be considered as done at the time when, according to the tenor thereof, they ought to have been performed.’ 1 Sto. Eq. Jur. § 64g.” As to the same point see Atwood v. Vincent, 17 Conn. 575, and Chapman v. Beardsley, 31 id. 115, 117. “ Whenever the holder of property is subject to an equity in respect of it, the court will, as between the parties to the equity, treat the subject-matter as if the equity had been worked out, and as impressed with the character it would then have borne.” Ad. Eq. (6th ed.) 295; 1 Pom. Eq. Jur. § 364. *721 The argument of the defendants in this case is, that as the husband of Mary E. Van Seiver did not execute with her the mortgage deed now owned by the plaintiff, that mortgage deed is void. This is a claim to which we are not prepared to assent to the extent claimed by the defendants. It is at least open to question whether a husband has any such interest in the sole and separate real estate of his wife that his failure to join with her in a deed of such lands is, in any event, anything other than the defective execution of a valid deed. Pease v. Bridge, 49 Conn. 58, 60; Stafford Savings Bank v. Underwood, 54 id. 2. In the case last cited the court, after reciting the statute (now §2960) said: “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.” May it not be that the consent of a husband to a deed made by his wife, shown in some other way than by his execution of the deed, would make the deed a good equitable conveyance of the land ? In such a case the husband w'ould certainly be estopped to say that the deed was void or even defective. We have, however, no occasion to pass on this claim. The husband of Mary E. Van Seiver did unite with her in the execution of the deed to Mrs. Moser under which she makes her present claim. He must be presumed, at least in the absence of evidence to the contrary, to have had knowledge of the agreement in pursuance of which it was given. In that agreement the mortgage held by the plaintiff is mentioned as a valid, subsisting conveyance. Having executed that deed Mr. Van Seiver could not be heard -to say that there was any defect in the said mortgage deed. But the mortgage deed upon which the plaintiff rests his claim was not void according to the authorities in this State. The land mortgaged belonged to Mrs. Van Seiver as her sole and separate estate. Her deed of it under the circumstances set forth in the record was a good equitable conveyance; *722 Donovan’s Appeal, 41 Conn. 551; Hitchcock v. Kiely, ibid. 611; Haussman v. Burnham, 59 id. 117, 133; and created a good equitable mortgage which Mrs. Moser assumed and promised to pay. There is no error. In this opinion the other judges concurred.