Dye v. Mann

Manning J.: Three principal objections are made to the decree of the Circuit Court by the defendant Pattee, the appellant. I. That the bill of complaint makes no case. 1. Because it does not state any consideration for the agreement between Mann & Morse of the 5th September, 1854, that was guaranteed by complainants. The bill states the agreement is in writing, and under the hand and seal of Mann. That is sufficient. The seal imports a consideration, and dispenses with a statement of the consideration in the bill, as well as proof of it on the hearing. 2. Because the liability .of complainants on their guaranty was to Morse only; and the agreement of 26th February, 1859, between Mann and complainants, which the mortgage was given to secure, was one of indemnity against that liability. By the agreement of September, 1854, Mann covenants to pay all the debts then due and owing to the firm of Mann & Morse — saving Morse harmless. The covenant is to pay the debts of Mann & Morse, as well as to indemnify Morse against the payment. It contains a present absolute undertaking on the part of Mann, as well as a future contingent one, on either of which an action would lie in case of a breach. An omission to pay the creditors of Mann & Morse, as their demands became due, would be [296] as clear a breach of the covenant as an omission to pay Morse after he had been compelled to pay them. In either case Morse would have a right of action on the covenant. The damages, is is true, in an action for not paying would be nominal; but still^the action would lie. The guaranty is unconditional. The liability of the guarantors is consequently co-extensive with that of their principal. What gives a right of action against him at the same time gives a right of action against them. What it is his duty to do as covenantor, it is theirs to do as guarantors. And by the agreement of 26th February, 1859, Mann not only undertakes to save them harmless against payments they should be liable to make to Morse, but also to pay them “ all sums that they may pay, or cause to be paid, arising in any manner from the breaches or breach” of the agreement guaranteed by them. Language broad enough to include, and in fact including, and we have no doubt so intended by Mann, all payments made by them under their guaranty, whether to Morse of a debt that had been paid by him, or to a creditor of the firm, of a debt which Mann was bound to but had not paid. 3. Because the averment of payment in the bill by complainants is bad for uncertainty. The averment is in the following words: “And your orators further show, that they have paid to the creditors of the said firm of Mann & Morse the sum of one thousand dollars, as they were obliged to do by the terms and legal effect of the agreement above set forth, on account of the default of the said Loomis Mann,’’ &o. We think the averment is sufficient. It is as certain as the covenant to pay; which is to pay the debts of the firm generally, without naming particular creditors. See Hughes v. Smith, 5 Johns. 168; Shum v. Farrington, 1 B. & P. 640; Barton v. Webb, 8 T. R. 469. Nor is the time of payment material, provided it was after the liability to pay accrued. This is sufficiently stated in substance, if [297] not in form, in the averment that it was made on account of the default-of the said Loomis Mann. On an appeal from a hearing on pleadings and proofs all matters of more form are to he disregarded, if the pleadings are good in substance. II. The second objection is that payment was made by two of complainants, and not by all of them. Their liability under their guaranty was a joint and not a several liability, and payment by any one or more of them was payment by all. Had the mortgage been given to secure them against a several liability, the mortgagees- not paying would in equity be trustees for those who had. in. The third and last objection is that the complainant’s mortgage — being of a homestead — is void in consequence of the wife of the mortgagor not having united with him in giving it. The state Constitution provides that a mortgage or other alienation of the homestead therein mentioned, “by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.’’ Art. 16, § 2. In Beecher v. Baldy, 7 Mich. 488, this provision in the Constitution came under discussion, and was fully considered by the Court. And in speaking of the waiver by a debtor of his right to a homestead, the following language is used: “And when the householder is a married man, he can not, probably, by any waiver, consent to .a sale on execution, so as to render the sale valid without the consent of his wife. For, in such case, the validity of the sale would rest upon his consent in the same manner as if he had conveyed by deed; and if deeded, by him under the like circumstances, the deed would be void, even as to him, without the signature of the wife.” The effect of a conveyance by the husband was not before the Court for decision in that case; but, we are still of opinion, that the language quoted is a correct exposition of the Constitution, so far as it goes — wishing in no respect to amend [298] it-, except to strike out tbe word “probably” in tbe first sentence. ,, The Constitution — whatever may have been the intention of the pre-existing statute — we have no doubt was intended to secure against creditors a homestead to every family in the State. Not as a personal privilege of the debtor which, to be made effectual, would have to be claimed by him — placing him in an attitude to have his motives suspected, but as an absolute right, necessary to the welfare of the household, of which the debtor should not be deprived, if an unmarried man, without some act of his relinquishing his right; or, if a married man, without, the joint conveyance of himself and wife. To the argument that a conveyance by the husband alone should be Held void only as to the homestead interest, and good for the remaining interest in the property, it is a sufficient reply to say, that the Constitution makes no such distinction, but declares such conveyance shall not be valid; that is, shall be void. If the language would admit of such a construction, it could not be adopted •without coming in conflict with the policy of the provision itself, and robbing that policy, in part, of its beneficence. A homestead thus incumbered would have no exchangeable value; and could not be used to procure another, in the same or at a different place, should the interest of the family require it. The Legislature have taken a more enlarged view of the Constitution, and provided by statute that when the homestead exceeds §1,500 in value, and is sold on execution, that amount shall be paid the debtor out of the proceeds of the sale, and be exempt from execution for one year thereafter — to purchase, it is to be presumed, a new homestead with: — Laws 1861, p. 541, § 3. The mortgage, though void as to the homestead, is good for any excess over and above the homestead. It appears from the proofs in the case, that the mortgaged premises consist of a quarter of an acre of land, [299] with a dwelling house, bam and other outbuildings thereon, worth, according to the testimony of Mann, $2,000, and of another witness $1,800, at the time the mortgage was given. Whether the premises are located within the village of Ionia, or outside of the village limits, is of no importance, as the value of the homestead can in no case exceed $1,500, and there is no evidence showing they exceed a village lot if within the village limits. It was not necessary for defendant to file a cross bill to make the defense he sets up in his answer. lie asks no affirmative relief against complainants, nor is he seeking to foreclose his own mortgage. The decree of the Circuit Court must be reversed, with costs, and a reference be made to a,Circuit Court Commissioner, to set off as a homestead, if the same can be done, so much of the lot with the improvements thereon as was worth $1,500 cash, on the 26th February, 1859, including the whole of the dwelling house, and, as far as may be found practicable, such of the outbuildings and other improvements as may be found most essential to the enjoyment of the homestead; to the end that on the coming in and confirmation of his report, a decree may be entered declaring the mortgage void as to the homestead so ascertained and set off, and good for the rest of the mortgaged premises, and a sale thereof if not redeemed, &c. Martin Cn. J. and Cheistiancy J. concurred.