White v. . McNett Et Ux.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 374 The defendant Abby McNett, who is the wife of the defendant Andrew J. McNett, was the owner, in her own right, of certain lands in the city of Buffalo, which she sold and conveyed to one Dexter Belden. In payment of a part of the consideration money, Belden executed and delivered to her, five bonds and mortgages, two of which she afterwards sold and assigned to the plaintiff's testator, Joel W. White, by deed of assignment bearing date July 6, 1855, with a covenant of guaranty, by herself and her husband, *Page 375 Andrew J. McNett, that the money payable thereby was collectible. Afterwards, proceedings were instituted to foreclose the mortgages, and decrees obtained therein against Belden, the premises sold under the decree, leaving a deficiency still due and unpaid upon the bonds, for which deficiency judgment was rendered against Belden, the mortgagor. An execution, in the usual form, against his real and personal estate, was duly issued to the sheriff, which was afterwards returned, with the usual return indorsed thereon, that Belden had no goods and chattels or real estate whereof the deficiency could be made or collected, or any part thereof. White thereupon commenced the action against the defendant Mrs. McNett, to recover the deficiency, alleging that she had a separate estate of her own, and seeking to charge the same with the unpaid balance upon the two bonds. The sale to Belden, the execution and delivery of the mortgages, with the covenant of guaranty, the proceedings to foreclose the same, the sale of the mortgaged premises, the deficiency, and the issuing and return of the execution against Belden, were admitted by the answer, and the other allegations in the complaint were denied. The judge, at the Special Term, found all the facts substantially as stated, and also that no part of the money received or realized from the bonds and mortgages, upon the sale thereof to White, was received by the defendant Mrs. McNett, nor was her separate estate in any way benefited thereby, but the same was received by her husband; Andrew J. McNett, and wholly appropriated to his own use, and as a conclusion of law, he found the plaintiff not entitled to the relief demanded in the complaint, and ordered judgment for the defendant Abby McNett, which was afterwards affirmed at the General Term of the eighth district, and the plaintiff appealed to this court. Two questions were raised upon the appeal, by the plaintiff's exceptions to the finding of the judge. First, his omission to find that Mrs. McNett had a separate estate of her own, derived from a person other than her husband. I do not observe, in the case, that any request was made by the *Page 376 plaintiff's counsel to the judge, to find that fact specially. And in the absence of such request I doubt very much whether he can avail himself of the omission to find the fact upon appeal. Both parties, however, as well as the judge, seem to have treated that fact as one settled by the pleadings. It was conceded by the answer that she owned real property in Buffalo, as her separate estate, part of which had been sold to Belden, and the mortgages in controversy were a part of the proceeds, and the last finding of the judge, that her separate estate was not in any manner benefited by the sale thereof, implies that she was the owner of such an estate. The other question raised by the plaintiff's exceptions, is that the contract of sale and guaranty was not for the benefit of the separate estate of the defendant Abby McNett. To enable the plaintiff to maintain this action, and charge the unpaid balance upon the separate estate of the defendant Abby McNett, he was bound to show that the intention to charge the estate was declared in the contract of sale and guaranty, or that the consideration obtained upon the sale was for the direct benefit of the estate. Neither of these circumstances appeared upon the trial. It was in the power of the plaintiff's testator, at the time of the purchase, to have required from her an express declaration, to the effect that her estate was to be chargeable, and thus brought the contract within the principle of the case ofYale v. Dederer (22 N.Y., 450); but this was not done, and unless the proof established that the money received upon the sale was applied to benefit her separate property, it could not be made chargeable. It was well observed, at the General Term, that the presumption arising upon the face of the papers, was that the money was received by Mrs. McNett, as she, with her husband, executed the deed of assignment, wherein she acknowledged the receipt of the consideration money. And in the absence of proof to the contrary, proof that she had received the money would have been proof of its application to benefit her estate. This presumption, however, was overthrown upon the trial, by the evidence. The plaintiff's witness, Lorenzo K. Haddock, who negotiated the purchase of the *Page 377 bonds and mortgages, testified that he dealt exclusively with McNett, the husband, and did not deal with or see Mrs. McNett in the transaction. The latter was herself sworn and examined as a witness, and said that none of the money came into her hands, and she did not know what was done with the money. She did, indeed, say that her husband was her financial agent, made payments, as such, upon mortgages given upon her separate property, and had charge of the building of the Hassard House, which I understand to have been a part of her property also. What new facts might have been proved had this course of examination proceeded further, we cannot say. Nor are we called upon to determine the question of the application of these moneys, as an original question. There was evidence sufficient to justify the judge to determine in favor of the defendant, and we think his finding in that respect should not be disturbed. The judgment should be affirmed. In which opinion all the judges concurred, except DENIO, Ch. J., and PORTER, J.