26 N.J. Eq. 504 | New York Court of Chancery | 1875
The question mainly discussed by counsel in this case is : Can a married woman, in taking a conveyance of lands encumbered. by a mortgage, make a valid contract to assume the payment of the mortgage in payment of the purchase money, on which she can be held for deficiency by the mortgagee ? This question is not raised by the woman, but by her grantees. They accepted a conveyance from her, containing a covenant that they would pay the mortgage debt as part of the purchase money they agreed to pay her. They claim their covenant is not binding, because made to a person who was under no personal liability to pay the mortgage debt.
It has been held that the personal liability of the covenantee or promisee, for the mortgage debt, is essential to the validity of a contract of assumption, otherwise it is a mere nudum pactum. King v. Whitely, 10 Paige 465 ; Trotter v. Hughes, 12 N. Y. 74.
Has a married woman capacity to make such a contract ? The form of the contract is of no importance. Her undertaking in this case is incorporated in the deed, and though not actually sealed, is, nevertheless, a covenant. Finley v. Simpson, 2 Zab. 311. But an oral promise by a person able to contract, is just as valid. Bolles v. Beach, 2 Zab. 680; Wilson v. King, 8 C. E. Green 153. By the third section of the act of March 25th, 1852, it is made lawful for a feme covert, to acquire title to real estate by gift or grant, and to hold it as her separate estate. Nix. Dig. 547. It is established, the words gift and grant are not used in a purely technical sense, but were intended to embrace all modes of acquiring land by deed. Ross v. Adams, 4 Dutcher 165; Adams v. Ross, 1 Vroom 514. This act unquestionably gives her
It is insisted, that a promise by the grantee to the grantor, to pay a mortgage debt as part of the purchase money of the land conveyed, is a contract of suretyship, and cannot, therefore, be made by a feme covert. As between the original parties, this is not true ; the promise is not collateral, but primary, and, in equity, the grantee is held to be the principal debtor, and the grantor the surety. Klapworth v. Dressler, 2 Beas. 63; Jarman v. Wiswall, 9 C. E. Green 269; King v. Whitely 10 Paige 467; Curtis v. Tyler, 9 Paige 432; Halsey v. Reed, Ib. 446.
The law, in giving married women the right to acquire and hold land, did not intend that their capacity to make contracts
I am of opinion the contract of Mrs. Sarson to pay the mortgage debt was valid, and that the complainants are entitled to avail themselves of the promises of her grantees to pay the same debt.
In the deed from Mrs. Sarson and her husband to Mr. Pomeroy, the words of the contract are that the “ party of the first part ” assumes and agrees to pay the mortgage as part of the purchase money. The mistake is evident. The party of the second part was to pay the purchase money. The deed is to be read according to the manifest intention of the parties. There can be no doubt what that is. It is clear the parties intended the grantee should bind himself to pay the mortgage. The court is bound so to construe the contract. Sisson v. Donnelly, 7 Vroom 438, is exactly in point, and must rule this case.
The decree, as originally framed, was clearly defective. Different parts of the mortgaged premises had been conveyed, at different times, to different purchasers, each assuming the payment of a distinct portion of the mortgage debt. The decree made no provision for a sale in parcels, and did not, in any way, ascertain or adjudge the portion or part of the mortgage debt, for which each defendant was liable. But since the decree was signed, the defendants, now asking to have it set aside, have procured orders, first directing a sale in parcels, and second, limiting their personal liability for the mortgage debt, to such sums as they had respectively assumed. This action of the court, at their instance, cures the defects of the decree as it originally stood, and removes all ground of complaint by them. The motion should therefore be denied, with costs. I will so advise.