46 A. 153 | Conn. | 1900
The complaint shows that on the 31st day of May, 1890, Mary E. Van Sciver was the owner of certain land in Norwalk which had been conveyed to her on her personal credit and which she had purchased as her sole and separate estate. In payment of a part of the purchase price of said land she had given her own note for $2,000, and secured the payment of the same by a mortgage of the land. The plaintiff is now the owner of the said note and mortgage.
About the first day of May, 1893, the said Mary E. Van Sciver and the defendant William Moser entered into an agreement in writing, by which the said Mary promised to sell and convey the said land to the said William for a certain price therein indicated, which price the said William promised to pay; a part of the said purchase price to be paid by his assuming the said mortgage to the plaintiff and promising *719 to pay the note secured thereby. At a later date, to wit, about the 15th day of May next thereafter, in pursuance of said writing and in the performance on her part of its stipulations and at the request of the said William, the said Mary conveyed said land to Minnie Moser, the wife of the said William, by a warrantee deed excepting the mortgages thereon. In her deed the mortgage to the plaintiff is specified and the instrument provides that such incumbrance "the said grantee hereby assumes and agrees to pay, as far as it is a legal lien upon said premises, as a part of the purchase price of said premises." At all these dates Mary E. Van Sciver was a married woman, married prior to 1877. The mortgage deed to the plaintiff's assignor was not signed by her husband. Her deed to the defendant was executed by her and her husband together.
Upon these facts the defendant insists that the complaint is insufficient, and that the Superior Court erred in granting the plaintiff's prayer for a foreclosure.
One or two preliminary observations will help to make clear the discussion of this claim. The deed to Mrs. Moser was made at the request of her husband and in the performance of a written agreement which he had entered into. She must therefore be presumed to have had knowledge of and to be bound by all the stipulations and promises in that agreement. That agreement is not merged in the deed, for the reason (1) that the parties to the deed are not the same as were the parties to the agreement; and (2) because a deed of and is intended to convey the title to the land, and is not intended to express the contract between the parties in pursuance of which the deed is given. Collins v. Tillou,
According to these authorities the trial court, in passing upon the sufficiency of the complaint and upon the plaintiff's claims for relief, was bound to consider the agreement between William Moser and Mrs. Van Sciver, as well as the deed from Mrs. Van Sciver to Mrs. Moser. Considering both these papers, the trial court had the case where property was *720
conveyed to a married woman upon her agreement to assume and pay, as a part of the consideration for said conveyance, a certain note and mortgage which was specifically named, and being so specifically named was specifically assumed; and then there was a specific promise to pay it. There was an agreement in writing for a good consideration to assume a mortgage. As against Mrs. Moser the mortgage so assumed became a good mortgage. It was in equity the same as though she had herself given the mortgage. The case so presented comes fully within the decision of this court in Hall v. Hall,
The argument of the defendants in this case is, that as the husband of Mary E. Van Sciver did not execute with her the mortgage deed now owned by the plaintiff, that mortgage deed is void. This is a claim to which we are not prepared to assent to the extent claimed by the defendants. It is at least open to question whether a husband has any such interest in the sole and separate real estate of his wife that his failure to join with her in a deed of such lands is, in any event, anything other than the defective execution of a valid deed. Pease v. Bridge,
The husband of Mary E. Van Sciver did unite with her in the execution of the deed to Mrs. Moser under which she makes her present claim. He must be presumed, at least in the absence of evidence to the contrary, to have had knowledge of the agreement in pursuance of which it was given. In that agreement the mortgage held by the plaintiff is mentioned as a valid, subsisting conveyance. Having executed that deed Mr. Van Sciver could not be heard to say that there was any defect in the said mortgage deed.
But the mortgage deed upon which the plaintiff rests his claim was not void according to the authorities in this State. The land mortgaged belonged to Mrs. Van Sciver as her sole and separate estate. Her deed of it under the circumstances set forth in the record was a good equitable conveyance; *722 Donovan's Appeal,
There is no error.
In this opinion the other judges concurred.