Eaton v. George , 40 N.H. 258 ( 1860 )

Bell, C. J.

At common law the deed of a married woman was ordinarily void, and not merely voidable. 1 Bl. Com. 293; Shep. Touch. 205, 232; Ela v. Card, 2 N. H. 175; Mathews v. Puffer, 19 N. H. 448.

By usage here, the land of a wife may be conveyed by the deed of the husband and wife. “ In order to make a valid conveyance of her estate, a husband and wife must so far join as to convey at the same time, on the same paper, and both in language suitable to pass the title to real estate.” Elliot v. Sleeper, 2 N. H. 525; Gordon v. Haywood, 2 N. H. 402; Flagg v. Bean, 25 N. H. 62. Unless the husband joins in the conveyance of the wife’s land, made by her, the principle of the common law remains in force, subject to some exceptions of recent introduction by statute. 2 N. H. 175, 402, 525; 19 N. H. 448; 25 N. H. 62.

The mortgage under which the plaintiff claims here is void or invalid, unless it falls within some of the exceptions made by the statute, or can otherwise be distinguished from the ordinary case of a deed by a wife alone'. The cases in which, by statute, a wife may hold and dispose of her real estate without her husband, are, (1.) When the husband has deserted his wife for three months, without providing for her and their children, or when any facts exist which are, or, if continued, will become a cause of divorce, and the wife is the injured party. Eev. Stat., ch. 149, sec. 1; Comp. Stat. 380. (2.) If the wife of an alien, or citizen of another State, shall reside in this State six months successively, separate from her husband. Ib., sec. 4. (3.) If, before marriage, the parties enter into a contract in writing, consenting that the wife shall hold the whole, or any designated part of her property, to her sole and separate use; Laws of 1846, ch. 327, sec. 1; such contract being recorded like a deed of real estate. Ib., see. 3. (4.) Where a conveyance, or devise of property, is made to a married woman, to her sole and separate use, free from the control or interference of her husband, the deed being recorded. Ib., secs. 2, 3.

There is no suggestion, in the evidence or in the pleadings, that any such state of facts existed in this case as would bring it within either of these exceptions. It seems probable that the mistake in this case arose from an idea that the deed from Mace to Mrs. George would fall within the fourth of these classes ; that being made to the wife alone, without mention of any interest of the husband, she would have the right to dispose of it. But the deed to her is in the usual form, the consideration is acknowledged to be received of her, and the conveyance is to her and to her heirs' and assigns, to her and their use and behoof forever. There is no phrase which conveys the idea that the wife is to hold “ for her sole and separate use, free from the control or interference of her husband.”

A deed and mortgage back of the same date, to secure the consideration money, must be considered as one transaction, and if the mortgage is avoided on the ground of infancy, the former becomes of no effect. Roberts v. Wiggin, 1 N. H. 73; Heath v. West, 26 N. H. 199.

We have not found the same principle stated in the case of the deed of a married woman, and a mortgage back to secure the consideration. The doctrine, as stated in Mathews v. Puffer, seems to be that the mortgage is “ jn law a mere nullity, as respects its power to transfer any title, interest or possession.” “ It is merely void, and requires neither entry, plea, or other act on the part of the party executing it, or others, whose rights might be included by its term's, to avoid it;” and as stated in Murray v. Emmons, 19 N. H. 486: “ There is no authority for maintaining that the lease, deed, or other contract of a married woman has any validity at all. Unlike the act of an infant, which is voidable only at his election, that of a feme covert is inoperative and void from the beginning, and requires only a plea of non est factum to annul it. 1 Bl. Com. 444 ; 2 N. H. 175; Com. Dig., Bar. & Ferm. Q.” And yet it is not at all apparent, independent of authority, why the same principle might not be properly applied in that case as in the case of infancy.

A feme covert is of capacity to purchase of others without the consent of her husband, but her husband may disagree, and divest the whole estate; but if he neither agrees nor disagrees, the purchase is good. But after his death, though her husband agreed thereunto, yet she may, without any cause alleged, waive the same, and so may her heirs also, if, after the decease of her husband, she did not agree to it. Co. Litt., 3, a.

The purchase of the wife being voidable, the question would be, whether the refusal by the husband, or by the wife, after his death, to allow any effect to the contemporary mortgage, might not be properly regarded as a dissent to the deed made to the wife.

It is not necessary to pursue this inquiry, because the husband here was present when the deed was made, and expressed no dissent ; and because the mortgage here, though given to secure a part of the consideration actually paid, was not given to the grantor, nor to secure any part of the consideration yet unpaid; and because, if the deed to the wife was avoided, it would not aid the plaintiff.

It is a principle of equity that if a man who has a right to a particular property is present at a sale of that property, by another, and he does not forbid the sale, or give notice of his claim, he will not be permitted to set np his title or claim against the purchaser, provided he was aware of what was doing; had knowledge of his rights, or such information as might have put him on inquiry, and the purchaser had no knowledge or reason to suspect his claim. Marshall v. Pierce, 12 N. H. 127; Watkins v. Peck, 13 N. H. 360; Wells v. Pierce, 27 N. H. 510.

In this case all parties seem to have acted under a mistaken impression of the law. They appeared to have supposed that by the deeds, as they were made, the property passed to the wife, and that the husband acquired no right or interest in it, and the wife had consequently a right to make a mortgage alone, to secure the money with which she made the purchase. In truth the deed of Mace, as it was made, gave to the husband a life estate in the property, and the right to avoid the deed to his wife, if he chose. But none of the parties seem to have understood this. If the husband were considered to be estopped to set up his right under the conveyance to the wife, it would not afford any substantial relief to the plaintiff, since there would be no estoppel to show that the wife’s deed was void, and conveyed no title. Besides, there is no reason to suppose that the husband’s interest was in any way concealed. All the facts on which his rights depended were entirely open to the view of all parties.

"When an estate is purchased in the name of one person, and the consideration is actually paid at the time by another, there is a resulting trust, by implication of law, in favor of him who paid the money. Scoby v. Blanchard, 3 N. H. 170; Pritchard v. Brown, 4 N. H. 397; Page v. Page, 8 N. H. 187; Pembroke v. Allenstown, 21 N. H. 107; Tebbets v. Tilton, 31 N. H. 283. If only a part of the purchase money is so paid by the third party, there will be a resulting trust in his favor, pro tanto. 21 N. H. 107; 31 N. H. 283.

In this case the money was loaned by Kennard to Mrs. George, to enable her to make the purchase, upon an agreement, supposed at the time to be valid, that he was to receive a note and mortgage for his security. Such instruments were made and delivered, but it turns out that they are mere nullities, of no value whatever. Can Kennard now claim that this money was in fact paid by him to Mace, and that a trust resulted to him in the property equal to the share of the purchase money so paid ? As the doctrine is stated in our decisions above cited, it would not seem sufficiently broad to reach this case, but there are cases, and authorities, which would justify stating the doctrine in stronger terms. If, upon a purchase of real estate, the deed is taken in the name of one, but the consideration paid is the property of another, there will be a resulting trust in favor of the owner of the money. Bright’s Eq. Dig. 340, sec. 414; 2 Mad. Ch. 113; Ad. Eq. 33, (n.) 1; 2 Story’s Eq. 457, sec. 1210; see Page v. Page, 8 N. H. 198; Foote v. Calvin, 3 Johns. 216; Brooks v. Dent, 1 Md. Ch. Dec. 523; Bruce v. Rooney, 18 Ill. 167.

Upon such a view of the law we might be led to this result: — Kennard having been induced to loan his money to Mrs. George by fraud, upon securities which were void, the title to the money did not pass, but it still remained his, when applied to the purchase of this land, and so a trust in the land resulted to him as owner of the money. To establish this position the plaintiff must show that he was induced to loan his money by fraud.

Fraud is not alleged in the bill. All that is said on the subject, is, that the defendant pretended that when she made the note, she knew it was good for nothing, but it is charged that the contrary was true. The answer and evidence are silent on the subject.

Upon this state of the pleadings and evidence, the fact of fraud cannot be found.

Perhaps it might be inferred, from the allegations of the bill and answer, that though there was no fraud, it was a case of mistake common to all parties, — they all supposing that the note and mortgage were valid. How far such a mistake would operate to avoid the negotiations for the loan of the money, so that it could be claimed that the title of the money did not pass to Mrs. George, may deserve consideration. Mistake is one of the most common grounds of relief in equity. If one party, knowing the other’s mistake, should take advantage of it, he would probably be guilty of a fraud. Jer. Eq. Jur. 366.

As this case presents itself to us, the question of usury is immaterial; since the note and mortgage are both invalid, nothing can be justly found due on either, and of course no deduction can be made.

The party who asks equity must be ready to do equity, and it may be doubted if a party can be allowed to ask a deduction on the ground of usury, unless he avows his willingness to pay what shall be found to be honestly due. 1 Story’s Eq. Jur. 300 ; 4 Bouv. Inst. 179.

The judgment set up in the answer is no bar to the plaintiff. The record shows it was a case of nonsuit. That is not an admission of the defendant’s pleas, nor a bar of another suit. If the judgment had been upon demurrer, as is alleged, it would be conclusive.

Upon the case as it stands the bill must be dismissed, but the plaintiff, on motion, may have leave to amend, on terms.