3 Nev. 52 | Nev. | 1867
Lead Opinion
Opinion by
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,
“ 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
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
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
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.