Mavrich v. Grier, 3 Nev. 52

Mavrich v. Grier

3 Nev. 52 | Nev. | 1867

Lead Opinion

Opinion by

Beatty, C. J., Brosnan, J.,

concurring.

In the month of May, 1863, Harriet Smith, a feme covert, entered into a contract with the plaintiff for the purchase of a house and lot in Virginia City.

The transaction was consummated by a conveyance • of the lot from the plaintiff to J. W. Grier, to be held in trust for Harriet Smith. At the same time, and as a part of the same transaction, *56Harriet Smith executed and delivered to plaintiff her promissory note for $2,000, bearing interest from date at four per cent, per month, and due October 1st, 1864, as the price of the house and lot. As a part of the same transaction, a mortgage was executed and delivered to plaintiff. The mortgage commences with this recital.- “This indenture, made the 15th day of May * * * between John W. Grier, trustee of Mrs. Harriet Smith, of * * * and Paul Mavrich,” etc. Then follow the usual words of conveyance, description of property, etc., and then follows the following recital:

“ This conveyance is intended as a mortgage to secure the payment of the sum of $2,000, the purchase money of said lot, the same being a note bearing interest at four per centum per month,” etc.

The mortgage is signed by Harriet Smith and John W. Grier.

For a while the interest was paid on the note. Afterwards the interest ceased to be paid, and the time of credit having expired, the plaintiff filed his bill to foreclose the mortgage. Grier and Harriet Smith alone were made defendants.

The defendants answer, and the only material facts they state in the answer are these: That at the time of the original transaction Harriet Smith was a married woman, and her husband was then living within the jurisdiction of the Court; that she was still a married woman, living with her husband within the jurisdiction of the Court, and always, since the beginning of the transaction, had been a married woman, so living with her husband within the jurisdiction of the Court. On the trial she proved satisfactorily that she was a married woman, and her husband was within the jurisdiction of the Court.

The Court, without making the husband a party, entered a decree for the sale of the mortgaged property. From this decree defendants appeal.

They make several points in the case which it appears to the Court scarcely require notice; yet, as they seem to be relied on in good faith, we will here dispose of them. '

It is contended that the mortgage cannot be enforced because Mrs. Smith, as a married woman, could not bind herself either by note or mortgage. It is true Mrs. Smith could not make a valid *57and binding contract; her note was not an instrument upon which she could be sued in a court of law. The mortgage does not purport to be her deed. Her signature to it is mere surplusage. The deed was made to Grier, and he executed at the same time a mortgage to secure the purchase money. This he had a right to do, and the'property was thereby bound, and not the less so because Mrs. Smith had made a void note. He describes himself therein as the trustee of Mrs. Smith, which was proper and right enough, but we cannot see that the mortgage would have been less valid if he had not so described himself. He took the legal title from the plaintiff, and he had the power to mortgage that title to secure the purchase price of the land. The interest of Mrs. Smith, as cestui que trust, was subordinate to the mortgage.

We hardly suppose that counsel is serious in his objection that Grier could not act as trustee of Mrs. Smith, because he had not been appointed as such by any lawful authority. We know of no other authority necessary to make a man a trustee for another than the will of a grantor who executes the deed of trust, and of the grantee who accepts it. The objection to the nonjoinder of parties is more serious. It seems to be well settled that in a bill to foreclose a mortgage against a trustee, the cestui que trust, as the party beneficially interested, must be made a party. (See Story’s Equity Pleadings, Secs. 207 and 209, and cases there cited.)

Mrs. Smith, then, although not properly a party to the mortgage, was a necessary defendant. When a married woman is a necessary defendant, it seems equally clear that the husband should also be a party to the suit, and joined with her; unless, indeed, when his interests are adverse, in which case he might be a plaintiff.

It is true that it has sometimes been contended that where the wife’s interest is entirely distinct from that of her husband, and the litigation is about her separate property, that the husband need not be joined. But all the cases cited in support of this doctrine seem to be cases where the husband was without the jurisdiction of the Court, or there was a deed of separate maintenance between the parties, or some other special reason for it. When there is no difficulty in bringing the husband in, we think the Court should not *58proceed to a decree before he is brought into Court. (See Story’s Equity Pleadings, Secs. 61 and 63.)

The judgment of the Court below is therefore reversed, and the cause remanded.

The Court below will cause the husband of Mrs. Smith to be made a party defendant, and upon his answering or suffering default, will proceed to .enter the proper decree in the case.

As the defense in this case seems to be frivolous, and merely for delay, and the error on which the case is reversed merely technical, we will not allow costs to the appellant; but the costs in this Court shall abide the final result of the suit in the Court below.

Rehearing

Upon petition for rehearing or modification of the judgment in the foregoing case, the following order was made:

Opinion by

Lewis, J., Beatty, C. J.,

concurring.

In reversing the judgment of the Court below in this cause, it was ordered that the costs on appeal should abide the final determination of the action. Upon this, the appellant petitions for a rehearing, or a modification of our order in this respect. We are satisfied, upon reflection, that the appellant should recover his costs upon this appeal, and that our first conclusion was incorrect. The judgment of this Court must therefore be so modified as to allow the appellant his costs upon this appeal.