Bouton v. . Welch

Werner, J. This action, which was commenced in the • County Court of Tompkins county, was brought to foreclose a mortgage given by William Welch to Gershom Hanford, the plaintiff’s testator. The defendant Alice Welch, who is the wife of said William Welch, claimed title to said mortgage. Counsel being in doubt as to the power of the County Court to grant the proper relief upon the issues which would necessarily be presented by conflicting claims of title to the mortgage, the case was by stipulation removed into the Supreme Court. The judgment entered upon the referee’s report, establishing the title to said mortgage in the defendant Alice Welch, having been unanimously affirmed by the Appellate Division, is conclusive upon us, if no legal error was committed in the reception or exclusion of evidence. A number of exceptions taken to the rulings of the referee are presented to us as grounds for reversal, but the only one which we deem it *556 necessary to discuss is whether the testimony of William Welch, the husband of the defendant Alice Welch, was competent under section 829 of the Code of Civil Procedure. A brief statement of the facts relating to the execution of the mortgage, and of said Alice Welch’s claim of title thereto, is essential to an understanding of this question.' Plaintiff’s testator, a childless widower of means, was the uncle of the said Alice Welch. The latter and her husband lived upon a farm known as the “Axford farm” in the totvn of Danby, Tompkins county, con-' sisting of about thirty acres’ and worth about one thousand dollars. Said testator owned a farm in the same town called the “ Grant farm ” valued at about two thousand dollars. In the fall of 1886 the house upon the “ Axford farm,” occupied by the Welclis, was destroyed by fire. At this juncture plaintiff’s testator and William Welch met and entered into an agreement for an exchange of the two farms. The latter was to take the “ Grant farm ” and the former was to receive the “Axford farm” and a purchase-money mortgage of two thousand dollars upon the “ Grant farm.” The claim of the defendant, which was established to the satisfaction of the courts below, is that this mortgage was to be her property after said testator’s death. The only testimony presented in support of this claim was that of William Welch, the husband of the successful defendant Alice Welch, and this is the testimony that is challenged as incompetent under section 829 of the Code of Civil Procedure. We think the objection is not good. The language of the statute as paraphrased to fit this case is that “ a party or person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor,” etc. As the witness Welch had withdrawn his answer prior to the trial, he was no longer a party in any such sense as to disqualify him on that ground alone. But it is urged that he was the “ person from, through or under whom!?’ the interested party (his wife) derived her interest or *557 title. Let us see. The subject of the controversy is a mortgage. It was the property of the plaintiff’s testator. It had been held by him under an agreement that upon his death it should become the property of his niece, the defendant Alice Welch. Upon the death of the former it became the property of the latter, for the court has so found. Did she get it through her husband, William Welch, or her uncle, Gershom Hanford ? The answer, it seems to us, is obvious. The husband never had any interest in the mortgage. It was clearly the property of the uncle. The fact that it was a mortgage upon the farm which the husband had acquired from the uncle, and that the mortgaged farm was received in exchange for a farm which had previously belonged to the husband does not change the situation. The mortgage was as distinctly and unequivocally the property of the plaintiff’s testator as though it liad been a mortgage upon the farm of John Doe instead of William Welch. Her title was not a derivative one secured from, through or under the husband, but was clearly an original and independent title, so far "as her husband was concerned, which she derived directly from her uncle. (Healy v. Healy, 55 App. Div. 315; affd., 166 N. Y. 624; Godine v. Kidd) 64 Hun, 585.) Suppose that the testator, instead of taking a mortgage, had insisted upon receiving the sum of $2,000.00 in cash in the trade, and that the testator had agreed to deposit it to his own use during life and to arrange for a transfer of the principal to his niece, the defendant, at his death. Could it be claimed that the latter’s interest or title in the money was derived “ from, through or under ” her husband % We think not, and we perceive no distinction in principle between such a case and the case at bar. Nor are wé embarrassed in this conclusion by the circumstance that the promise upon which the defendant Alice Welch’s title to the mortgage is founded, was made by the plaintiff’s testator to said defendant’s husband. A promise made to a husband by a third party for the benefit of the wife can be enforced by the latter. (Buchanan v. Tilden, 158 N. Y. 109.) It does not follow, as has been suggested, that because the husband’s obligation to *558 provide for the wife is a sufficient legal consideration to support the promise of a third person for the benefit of the wife, the fruit of such promise is derived “ from, through or under ” the husband. On the contrary, there are many cases in which the product of the promise is property in which the husband never would or could have any interest whatever. In such a case the law simply makes use of the husband’s obligation to provide for the wife in order to enforce the promise; but the promise, as well as the property, proceeds from the third person directly to the wife and the latter receives “ from, through or under ” him, and not “ from, through or under ” the husband. The judgment should be affirmed, with costs.