Spear v. Ward & Wife

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 [675] instruments, and purports to cover the separate estate of the wife, as well as the interest of the husband in the premises described. The suretyship of the wife, though not expressed in terms upon its face, would follow (were it not for the consideration clause) as an inference, from the fact that the mortgage is executed upon her separate property, taken in connection with the bond of her husband. (Loomer v. Wheelwright, 8 Sand. Ch. 154.) The transaction, but for that clause, would, upon its face, be deemed one of suretyship. As between the mortgagors and the creditor in such case, evidence is admissible to show, as against its form, the real character of the transaction. “It is well settled,” says Mr. Chief Justice Eelson, “that if the loan, to secure which the wife has pledged her separate property, was intended for the benefit of her estate, or as a bounty to the husband,” (or, as we may add, for her own benefit) “ the relation of principal and surety, or debtor and creditor, does not exist between them.” (11 Wend. 825.) And it requires only slight proof to overcome the effect arising from the form of the transaction as between the parties. Substantially the same form would be followed, if the loan were made expressly for the benefit of the separate estate of the wife, or for her own benefit, with the knowledge of the mortgagee. (3 Paige, 651.) The mortgage, in such case, woidd be taken upon her separate properly, and if any personal obligation were required, it would have to come from her husband or a third party. The wife is incapable of contracting a personal obligation. Her disability in this respect, arising from her coverture, exists in this State as at common law. If she should sign a bond, it would not be binding upon her personally. If she should unite with her husband in the bond, it would still remain invalid, except as his individual contract. In the present case, the consideration clause in the mortgage is the evidence produced to overcome the effect arising from the form of the transaction between the parties. The pleadings do not affect the question. The answer alleges the suretyship of the wife, and the contract extending the payment of the balance due, to discharge the lien upon her separate property. The replication traverses the allegation of suretyship, and until this allegation is sustained, the [676] character of the contract is immaterial. Ho proof was offered upon the question of suretyship, and the case stands, so far as the defense is concerned, upon the form of the instruments. The question, then, is as to the effect of the admission furnished by the consideration clause—that the mortgage was executed for moneys received by the mortgagors, “ and each of them.” This admission meets, and, as we conceive, countervails the effect otherwise arising from the form of the transaction. The wife being empowered to execute a mortgage is prima facie bound by the clause stating the consideration of its execution. Such clause, it is true, is not conclusive; subject to certain qualifications it is open to explanation, and may by varied by parol proof. (Bennett v. Solomon, 6 Cal. 135; McCrea v. Purmort, 16 Wend. 460.) But when no such explanation is made, or proof offered, the clause must be deemed to express the actual consideration. The mortgage then must be held to have been executed in consideration of $6,000 received by both husband and wife. Eor this money, the husband gave a personal security-in his bond; the wife gave a real security in her mortgage. The bond and mortgage are of even date, and parts of one transaction. In a transaction of this character, the wife does not occupy with reference to the mortgagee the position of surety for her husband, but is a principal with him. The objection urged to the character in which the guardian appears is without force. He was authorized to institute the action 1 as general guardian of the plaintiff. If he was not properly appointed guardian ad litem before the commencement of the action, the title is incorrect. The body of the complaint shows sufficiently his relation to his ward to justify the institution of the action on his part. (Act to provide for the appointment and to prescribe the duties of Guardians, of April 19th, 1850, sec. 1; Gronfier v. Puymirol, 19 Cal. 629.) Judgment affirmed.