White v. Button

Beadlet, J.: In the proceeding for the accounting it appeared that Mrs. Johnson paid from the estate of her testator, the remaining $1,000 [558] ■secured by tbe bond and mortgage of tbe purcbaso-money of tbe premises conveyed to ber. And tbe surrogate allowed that sum to tbe executor of ber will as a proper charge against the estate of Levi Johnson, deceased. He held that the debt for the purchase-price of the premises was that of the husband, and that she had the relation of his surety in the bond and mortgage, and in that manner supported the charge. While on the part of the petitioner it was contended there, and is here, that because she took title to the property the debt was hers, and as between her and him there was no legal liability on his part to pay it. The only question on this review ai’ises out of that controversy. As between the husband and wife the conveyance was made to the latter without any other than a meritorious consideration, and the payments by him made were gifts to her, and any liability he assumed to pay the purchase-money was for her benefit. He did it to provide for her a comfortable home, and very likely intended to pay the full amount of it and may have done so, had he survived the maturity of the last installment of $1,000. So far as the gift was executed it was effectual to vest property in his wife, but so far as it remained unperfeeted or executory as between them no legal right was vested to require its completion. He could incur liability to another for property and vest in her title to it by gift, and the debt be his, and as between him and wife, he and his estate be chargeable to pay it. The deed and mortgage were simultaneously made, and in practical effect as between the parties to them were parts of one instrument, and the conveyance was of the equity of redemption only, which as between her and the grantor was all the wife took by it. (Stow v. Tifft, 15 Johns., 458; Jackson v. De Witt, 6 Cow., 316; Mills v. Van Voorhies, 20 N. Y., 412.) The undertaking to pay the secured portion of the purchase-money was executory. If the agreement of the husband to pay had been with or to the wife, and her remedy to require payment by him as his debt depended upon such undertaking there would be no legal liability on his part, nor could it be treated by her as his debt. (Whitaker v. Whitaker, 52 N. Y., 368.) If he had taken the deed himself, incurred no personal liability, and given a mortgage on tbe premises, and then without consideration conveyed them to his wife by deed with covenants of warranty and [559] ■against encumbrances, be and bis estate would not baye been chargeable to her by way of protection against the lien of the mortgage or for reimbursement if she were compelled to pay it, because her right: would in such case depend wholly upon the covenants in the deed to her, and they being executory would furnish no support for such remedy in her behalf. (Duvoll v. Wilson, 9 Barb., 487.) The reason is founded in the fact that no liability could be created or arise out of the covenant or agreement made without consideration to support it. But here the obligation assumed by the husband was to the grantor and was personal and valid. It was his debt and he was liable to pay it, and as between him and his wife individually ■and as his personal represesentative it could be so treated. It was in no sense an agreement with her to pay to her or for her benefit, but as between them it was a liability to another to pay for property purchased of which the conveyance to her was a gift by her husband to the extent of the payments and liability made and assumed by him to the grantor. And if she had been compelled, to pay and paid -for the protection of her title any portion of the amount so assumed by him, she would have been afforded the right of subrogation for the purpose of 'charging him or his estate with the amount of such liability because it was his debt. (Cole v. Malcolm, 66 N. Y., 363.) She as his personal representative was justified in paying the amount necessary to discharge such liability. The remaining question is what was the amount of it? The bond given for the unpaid purchase-money was executed by both husband and wife. The-debt was for property conveyed to her. By the terms of the instrument their liabilities were equal and both were legally liable to the obligee, and unless something aliunde that instrument justifies or requires the conclusion of a different relation, each as between themselves was chargeable for one-half only of the amount.. The circumstances justify the conclusion that the payment of the $800 by Mr. Johnson on it was made without any purpose to require.his wife to contribute, but as a discharge of both obligors to that extent. The wife, therefore, is not chargeable with any portion of that sum so paid by him, and the question of liability to contribution as between them has relation to the $1,000 only, which was paid by her as executrix from the estate of her testator. The court below determined that the debt was that of the husband and [560] the wife was surety. The evidence is that the purchase of the premises was negotiated by Mr. Johnson, and he made the bargain for them in the absence of his wife. If the debt was his alone why did she execute the bond? The sale and purchase were not consummated until the bond and mortgage were made. It does not appear that it was his debt. The fact that he did the business of making the purchase, and the inference that it was his purpose to provide a home for her are not sufficient. The purchase was for her benefit as the conveyance to her shows. The obligation was to pay for her property. Their relation, if designed to be other than that which the terms of the bond imported, was produced by agreement between them; and if the husband’s agreement with her was that he would pay the whole amount, and thus in effect give her the relation of surety in the instrument, it would be executory,, and being without consideration and for her benefit would create no-legal liability on his part to her. As against the unqualified terms-of the bond there does not seem to be evidence sufficient to prove that the entire debt was that of Mr. Johnson. He had not before the execution of the bond assumed any liability to pay. His mere intention to pay the entire amount of it did not make it his debt,, nor create any such liability as between him and his wife, or give to her the relation as surety. The terms of the bond seem to control-the legal relation and rights of the obligors as between themselves.. These views lead to the conclusion that the widow was entitled to-charge against the estate of her testator only one-half the amount of the $1,000 paid by her to discharge the mortgage debt. The question involved was not free from difficulty. And if this result is-adopted neither party should have costs of the proceeding before the surrogate or of this appeal. The decree should be reversed and a new hearing had, with costs of this appeal to abide the final award of costs unless the respondents stipulate to deduct from the amount of credit given to them and increase the amount awarded to the petitioner $500 as of the date of the decree and in that event the decree be so, and further modified by striking from it the award of costs j and as so modified be affirmed, without costs to either party. Sidth, P. J., and BARKER, J., concurred. So ordered.