Leffingwell v. Freyer

21 Wis. 392 | Wis. | 1867

Dixon C. J.

The obligation of a surety is stricti juris; and if his contract is not binding at law, there is no liability in equity founded on the consideration between the principal parties. A court of equity will not enforce a liability upon a surety, where he is not held at law. This principle governing the rights of sureties in general, is equally applicable to the case of a married woman having a separate estate, who has entered into a contract as surety for her husband or some third person. Yale v. Dederer, 18 N. Y., 276.

The mortgaged premises were the separate property of Mrs. Freyer. The mortgage was executed to secure the debt of Freyer & Bros. As to the mortgage, therefore, Mrs. Freyer was a mere surety. The only grounds upon which equity gives relief in cases like this, as against any person, are fraud, accident or mistake. There is no pretense of accident or mistake. The satisfaction of the mortgage was the result of a deliberate agreement between the plaintiff and the defendant Nelson Freyer. It must then be on the ground of fraud, if at all, that the satisfaction is to be set aside. Fraud, to be available against Mrs. Freyer, must be fraud on her part. It is presumed that a surety even cannot take advantage of his own fraud. But there is not the slightest evidence showing or tending to show that Mrs. Freyer was guilty of any fraud in procuring the mortgage to be satisfied; and hence the action ought to have been dismissed. This is upon the supposition tbat ber husband, Nelson Freyer, perpetrated a fraud. Au examination of the evidence convinces us that the charge is not made out against him. The only ground upon which it can rest is, that he represented that he was authorized by Mrs. Freyer to agree to execute a new mortgage, when in fact he was not If we take the plaintiff’s own statement, no such representation was made. Mr. Freyer was not questioned as to his authority to promise in behalf of his wife, and what he said is quite consistent with the supposition that he had no authority, and did not intend to represent that he had, but that he made-the promise believing that he could afterwards persuade Mrs. Freyer to execute the mortgage, as he himself had agreed. The substance of the transaction was, that the plaintiff assented to the satisfaction of the old mortgage upon Mr. Freyer's promise to procure the execution of a new one. The failure of such promise constitutes no ground for vacating the satisfaction as against Mrs. Freyer, nor for compelling her to execute a new mortgage.

By the Court — The judgment of the circuit courtis reversed, and the cause remanded with directions that it be dismissed.