Campbell v. Moulton

The opinion of the court was delivered by Redfield, Ch. J. The only question made in the present case, is in regard to the consideration of the note sued. It was executed for the price hf land sold and agreed to be conveyed. The deed was executed by a feme covert, without her husband joining in the execution, he being present and assenting, and both parties' supposing the deed sufficient to convey 'the title, which was primarily in the wife. If, when the defect in the conveyance was discovered, the plaintiff had declined to make the conveyance, or for any reason it had not been in his power to convey the title, the note probably must have been regarded as invalid. There can be no doubt that the deed of a married woman is void, and if that were the only consideration of the note, it must be held insufficient. But in the present case the plaintiff did convey, as soon as requested, and the purchaser accepted the conveyance without objection. There can be no doubt this, rendered the note perfectly valid and binding between the plaintiff and the purchaser. The request for a deed, and accepting it, could be regarded in no other light than a ratification of the contract of sale, including the securities given. It is very questionable whether, under the facts in this case (where there had beeff-such part execution of the contract as evidently to enable the court' of chancery to decree a specfic performance, so that the contract was really obligatory between the parties), whether the defendant, upon the discovery of the defect in the conveyance, could have repudiated the contract, without first demanding a confirmation of the title. But however that may be, it is certain that after having accepted the conveyance of the title of the land which was the agreed consideration of the note, the purchaser can not defend an action upon the note on the ground of a want of consideration. And we think that accepting the title by the purchaser, in the mode the surety supposed it had already been conveyed, renders the note equally binding upon the surety. The surety contracts always, in the first instance, upon a consideration passing between [670] the principal parties. His signature is in the nature of a blank signature, to be used at the election of the principal in a particular mode. The authority of the principal is absolute, as to whether he will use the note or not, but he is bound to use it only for the purpose for which it was originally given, i. e. in the present case, to pay for this land. But he has an absolute right to use it for this purpose, until at least his power is revoked, either expressly or by fair implication. And if there happen to be a defect in the mode of conveying the title, it does not seem to us that this is a question with which the surety has any concern, or in regard to which the principal is bound to consult him, if the seller is willing to confirm it. We think, therefore, that upon the facts in this case, the plaintiff was entitled to judgment against both defendants upon the note. Judgment is affirmed.