Pfeiffer v. Riehn

13 Cal. 643 | Cal. | 1859

Baldwin, J. delivered the opinion of the Court

Terry, C. J. concurring.

This bill was filed by the female plaintiff, in conjunction with her husband, to set aside a certain decree for the sale of property which she claims as homestead, situate in San Francisco. This lot was sold on a decree for the foreclosure of a mortgage, which was executed to Riehn by Pfeiffer and wife, in the form required by statute. The female plaintiff charges that she was ignorant of the English language. That she was requested by her husband to sign a note, and a mortgage to secure it, on this property, which she did without knowing the contents; that the mprtgage pui’ports to be acknowledged before one Moore, Rotary Public, the certificate being in the usual form, but she denies the truth of the facts therein stated—as the examination and her being made acquainted with the papers. The same averments are made in relation to another mortgage.

Bill avers that defendant, Riehn, in January, 1857, commenced an action for the foreclosure of his mortgage against the plaintiffs, etc. The summons was returned as executed on them the 21st January, 1857; that neither of the defendants, except the female plaintiff, answered, and, on the 20th June, 1857, a default was entered in the Clerk’s office against all the defendants except the female plaintiff. That, on the 10th February, 1857, she filed her answer, signed by a law firm, denying the execution of the note and mortgage, and claiming a homestead. On the 27th June, 1857, a verdict was returned for the plaintiff.

She avers, that, at the time she received the summons from the Deputy Sheriff, she handed the same over to her husband as a matter pertaining to his business alone; and, at the time of the trial, and for a long time before, she was sick; that she was dependent on her husband to employ counsel and defend the suit, etc.; that he employed one Parker, but never told him of the defense as here set up. Parker accordingly did not set up any such defense. She is advised that the answer^—denying the execution of written documents on which the action was founded—not being verified was a mere nullity; that no Attorney was present at the trial; avers that the consideration on which the mortgage was given was a mere nullity—it being a joint note of her and her husband; that she could make no joint contract except as connected with her separate estate—which this was not.

Bill prays that the verdict may be set aside and the decree-of foreclosure entered thereon opened up, and plaintiff admitted to make a defense, etc.

The defendants answered, denying the material averments in respect to the execution and acknowledgment of the mortgage, and averring that she acknowledged it as the certificate states, knowing the contents, which were explained to her.

The Court below submitted the case to a jury, who returned a verdict for the defendants.

It would be no easy task, perhaps, for the plaintiff to maintain this bill, even upon proof of all its averments. But upon looking at the proofs, though they do not agree, we have no hesitation in arriving at the conclusion that the jury were right in their verdict. It is not our habit to review the testimony; it is unnecessary here'; because if any proof sustains the verdict and judgment, we should not disturb it.

Some points are made by the Appellant, which we will briefly notice:

1. A motion to strike out the defendants’ answer because it was not verified—the bill having been sworn to. The ground of this objection is, that the verification was before the County Recorder, who had no authority, as Appellant contends, to administer oaths. But the statute giving authority “ to Recorders to take affidavits to be used in any Court of Justice in this State,” comprehended the power to take and certify the jurat—which is, in form and substance, an affidavit.

2. It is said that a married woman cannot make a note except as affecting her separate estate, and, therefore, this mortgage founded on this note, is void. We think otherwise. Even if the note of the wife is void as to her, it was good as to the husband, and the property is bound by the mortgage, independent of the note of the wife—if otherwise valid.

3. It is argued that the Constitution protects the property from forced sale by decree of foreclosure of a mortgage, as well as otherwise, and some cases from Texas are cited. But the Texas Constitution is different from ours. In the case of Carey v. Tice, (6 Cal. 629,) the same point was made. The Court say: “ Upon the point that the Legislature can direct in what manner this species of property may be sold, or the tenancy destroyed, we have no doubt. The Constitution is inoperative of itself, and looks to legislation; and in acting upon this subject, it was a matter entirely within the discretion of the Legislature to determine how far, and in what manner, the homestead should be protected.” It is true, the case might have been decided without this last proposition, but it arose from the facts and was fully argued. We regard the decision as binding, upon the rule of stare decisis, as important rights have vested under it, even if we were satisfied—which we are not—that the doctrine was originally questionable.

4. We think there was no necessity for the mortgage to define the premises as the homestead. The grantors interested in property are presumed to know what they are granting when they use expressions which accurately describe the property.

5. There was no necessity for an interpreter, for it seems the jury and the Court below were satisfied that the wife understood English.

6. Having been served with process, the wife was bound by the judgment in the first suit. She cannot -complain that her answer was not verified. And if she, by excusable negligence, failed to make defense, the very thing found against her now is that she had none.

7. The decrees might have been made in both suits without a jury, but we do not see that they were vitiated because of the verdicts.

Decree affirmed.