McGrath v. McGrath ( 1918 )

Ostrander, C. J.

(after stating the facts). The case is a singular one., Counsel cite no adjudicated case in point, perhaps could not do so. We have found no case like it. Nor does counsel for the plaintiff point out the duty owed by defendant to plaintiff, performance of which will operate to cancel the mortgage in his hands. No duty, no enforceable equity in the premises, arises from the marital relation. Mrs. McGrath is in no worse and no better position than she would be if she were not the wife of defendant. • She did not pay his debt at his request, nor because her relations with him imposed upon her the duty to pay it. He provided for the payment of his debts. The fact that as between himself and his creditors, the debt not having been paid, he was liable to pay it, made the payment of it by her none the less her voluntary act. She might have had the demand assigned to herself and enforced it, in due season, against her husband and his property. She did not buy the demand, and we think it altogether improbable that she did not understand that as between her husband and her son the duty to pay the debt rested upon the son. We know of no rule which permits a court of equity to treat what was done as an. equitable assignment of the demand against her husband, and no such idea is suggested by her counsel. And if such an idea was entertained, no action to enforce the demand in her hands could now be maintained unless the husband waived the operation of the statute of limitations. It may seem to be an ungenerous, an ungallant, thing that the defendant husband is doing, but we are impressed that the case, in law, is no different from what it would be if he were not her husband. And if he were not her husband, no one, we think, would contend that he had, in buying the mortgage, merely extinguished a debt which the holder of the mortgage might originally have forced him to pay. He does not own the mortgaged property, and there is therefore no merger. His intention to pay the debt is negatived. His right of recourse against the one who agreed to pay the debt is lost.

We feel constrained to reverse the decree and enter a decree here dismissing the bill, with costs.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.