Conde v. Shepard

4 How. Pr. 75

• Court: New York Supreme Court
• Decided: July 30, 1849
• Status: Published

Opinion

Willard, Justice.

The wife had a right to receive, in her own name, a deed of real estate, and to hold it without its being subject to the disposal of her husband, (L. of 1848, p. 308, § 3,) although the act of 1848 is silent with respect to her right to dispose of the same; yet I apprehend there is no doubt, that at common law she had the right, by uniting with her husband, to charge it with a mortgage, or to convey it away in fee. The better opinion seems to be that the husband, at common law, must unite with the wife in the conveyance. (2 Kent’s Com. 152.) At at. any rate, his uniting with her cannot injure the conveyance. (1 R. S. 758, §§ 10 and 11; Root v. Mix, 17 Wend. 119 ; Gillett v. Stanley, 1 Hill, 121.)

The plaintiff, in a foreclosure suit before the code, might unite with the owner of the equity of redemption any person contingently liable for the debt, either as principal or surety. The rule formerly was, that the mortgagee might sue at law on the bond, and at the same time proceed in equity on the mortgage to foreclose it. (6 J. Ch. R 77.) This was remedied by the Kevised Statutes. (2 R S. 191, §§ 151-154.) It is now expressly enacted, that if the mortgage debt be secured by the obligation or other evidence of debt of any other person besides the mortgagor, the complainant may make such person a party to the bill; and the court may decree payment of the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases. (Id. § 154.) The bond in this case was void as to the wife, but good as to the husband. He was a necessary party, and there may be a decree over against him personally for the balance, if the whole cannot be collected by a sale of the mortgaged premises. The wife was a necessary party, because the legal estate was in her, and she, together with her husband, were the mortgagors. The code has not changed this feature of the Revised Statutes. (See § 167 as to the joining of causes of action, and § 111, &c. &c., as to the parties to action.) The husband and wife were properly made defendants in this cause.

The demurrer in this case is not well taken—there is no misjoinder of parties, nor uniting of incompatible causes of action. Although the wife is not liable on the bond in case of a deficiency after the sale of the mortgaged premises, yet that is not an objection that can be raised in this demurrer.

The plaintiff is entitled to a judgment for the fiivolousness of the demurrer. The points raised by it are all well settled, and have been so for about twenty years.