Drury v. Foster

Decision Date01 December 1864
PartiesDRURY v. FOSTER
CourtU.S. Supreme Court

FOSTER, of Minnesota, being about to engage in some enterprise, and wanting money, asked his wife, who owned, in her separate right, a valuable tract of land in that State, to mortgage it for his benefit. What exactly was said or promised did not appear. However, Foster afterwards went to a notary, who exercised, as it seemed, the business of a scrivener also, and directed him to draw a mortgage of the property, with himself and wife as mortgagors, but leaving the name of the mortgagee, and the sum for which the land was mortgaged, in blank. This the magistrate did. Foster acknowledged the deed, at the magistrate's office, in this shape, and the magistrate then took the instrument to Mrs. Foster, at her husband's house, that she might sign and acknowledge it in the same shape. When the magistrate took the mortgage to her thus to execute, Mrs. Foster said, 'she was fearful that the speculation which her husband was going into would not come out right; that she did not like to mortgage that place, but that he wanted to raise a few hundred dollars, or several hundred dollars, or something to that effect,'—the magistrate, who was the witness that gave the testimony, did not recollect the exact expression which she used,—'and that she did not like to refuse him, and that so she consented to sign the mortgage.' Mrs. Foster, having signed the instrument in this blank shape, the notary, under his hand and seal, certified, in form, that the husband and wife, 'the signers and sealers of the foregoing deed,' had personally appeared before him, 'and acknowledged the signing and sealing thereof to be their voluntary act and deed, for the uses and purposes expressed;' and that the wife, 'being examined separate and apart from her said husband, and the contents of the foregoing deed made known to her by me, she then acknowledged that she executed the same freely, and without fear or compulsion from any one.' Such form of separate acknowledgment, it may be well to say, is required by statute, in Minnesota, to give any effect to a feme covert's deed. After taking the wife's acknowledgment, the notary gave the instrument to her husband. He, finding the complainant, Drury, willing to lend as much as $12,800 upon the property, himself filled up the blanks with the name of Drury, as mortgagee, and with the sum just mentioned as the amount for which the estate was mortgaged. In this form the instrument was delivered to Drury, who, knowing nothing of the facts, advanced the money in good faith, and put his mortgage on record. There was no evidence that the wife derived any benefit from the money advanced, or that she ever knew that such a large sum was advanced.

On a bill of foreclosure brought four years afterwards by Drury against Foster and wife, in the Federal Court for Minnesota, the defence was, that the mortgage was not the wife's deed; a defence which the court below thought good as to her. It accordingly dismissed the bill as regarded her, giving a decree, however, against the husband. The correctness of its action as regarded the wife was the question, on appeal, here.

Mr. Peckham for Drury, the mortgagee: All will admit that it is not easy to conceive of a case addressing itself more to a sense of equity. Drury, without a circumstance to excite suspicion, and relying upon a mortgage regular upon its face, advanced a large sum in perfect good faith. He supposed, too, as was natural, that the mortgagors were acting in equal good faith. Mrs. Foster deliberately, and with understanding, put it into the power of her husband to obtain the loan. Will she be permitted, at this late day, in conjunction with her husband, to disavow her acts, and thus, in effect, defraud an innocent third party whom she has been chiefly instrumental in bringing into his present position? Even if Mrs. Foster were entirely innocent in the premises, and was the victim of the fraud of her husband, yet either she or the plaintiff must suffer loss in the present case; and no principle is better settled than that where loss must fall upon one of two innocent parties, it must be borne by that one who is most in fault. There is no reason for exempting the wife from the operation of this rule. On the contrary, in transactions between the husband and wife and third parties, there is the strongest reason for applying the principle. It would be against public policy, and expose transactions relative to real estate to hazard, to allow a married woman to screen herself from the consequences of her own acts under the circumstances of the present case. Such a doctrine would subordinate all other interests to those of married women.

Viewed on legal principles, the conclusion is to the same effect. It is of no pertinence to cite, in this day and this country, 'technical dogmas,' as Grier, J., calls them,1 out of Shepherd's Touchstone, or Perkins. These old books may, indeed, declare, 'that if a man seal and deliver an empty piece of paper or parchment, albeit he do therein withal give commandment that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no good deed.'2 But such doctrines have been exploded, even in England, these two hundred years. Certainly the contrary, as respected a bond, was adjudged in Zouch v. Claye, 23 and 24 Charles II, in the days of Norman French and of blank-letter law. Levinz thus reports the case:3

'Det sur obligation. Le case fuit tiel. A. and B. seal and deliver le bond a C., et puis per le consent do touts les parties le nom et addition de D. fuit interline, et il auxy seal l'obligation et ceo deliver. Et si l'obligation per cest alteration fuit faet void vers A. and B. fuit le question. Et per Hale et totam curiam adjudge que nemy.'- 'Debt on bond. The case was this. A. and B. seal and deliver a bond to C.; and then, with the consent of all parties, the name and addition of D. was interlined; and he also sealed the bond and delivered it. The question was whether, owing to this alteration, the bond was void as respected A. and B. Any by Hale, and the whole court adjudged that it was not.'

Texira v. Evans, cited in Master v. Miller, and reported by Anstruther,4 A. D. 1793 (Lord Mansfield's time), did but affirm this old adjudication. There, Evans wanted to borrow 400, or so much of it as his credit should be able to raise. For this purpose he executed a bond, with blanks for the name and sum, and sent an agent to raise money on the bond. Texira lent 200 on it, and the agent accordingly filled up the blanks with the sum and Texira's name, and delivered the bond to him. On non est factum pleaded, Lord Mansfield held it a good deed.

The principle was early enunciated in America. Chief Justice Parsons, in delivering the judgment in Smith v. Crooker,5 where a bond had been executed by a surety before his name had been inserted in the body of the instrument, and his name being afterwards inserted therein in his absence, holding the instrument valid, remarks: 'The party executing the bond, knowing that there are blanks in it to be filled up by inserting particular names or things, must be considered as agreeing that the blanks may be thus filled after he has executed the bond.' Ex parte Kerwin6 is a later case, one in New York. It was there held, that an appeal bond drawn in blank as to the recital of the judgment, and executed by the appellant and his surety, the former giving parol authority to his surety to ascertain from the justice the amount of the judgment, and fill up the blank accordingly, and deliver the bond for both, and which was done, was a good bond. This is similar to the case at bar, in the respect that the agent for the insertion of the blanks and delivery of the instrument was one of the co-obligors. Many other American cases are to the same point.7 This relaxation of ancient technicality is universal in our new Western States. There people deal with lands as they do with oxen; and pass a fee simple to a hundred acres with as much facility as they do the title to a plough or a cart.8

We assert, and the cases just cited prove, that a paper under seal, executed with blanks, becomes, when theose blanks are filled up, and the instrument is afterwards delivered, the party's deed. And it is difficult to see why a contrary view should be entertained. Parol authority is confessedly sufficient for the mere delivery of a deed. But delivery is the act of acts. It is the act by which each and all of the other acts necessary to the execution of the deed become operative and effectual. By it the signing, the sealing, and the acknowledgment take effect. If, therefore, delivery can be made under parol authority, why may not blanks be filled in, and alterations and interlineations made in deeds before their delivery be like authority? Neither of these things constitute the execution of a deed, but are merely acts necessary to be performed in the execution thereof; acts consummating and giving effect to the execution.

The fact that the party making this deed was a feme covert is unimportant. What an ordinary person may do without examination, a feme covert may do when separately examined. If an ordinary person, without examination, may execute a deed with blanks, a feme covert may execute a similar deed, provided she be separately examined, know fully what she does, and it be plain that it was such a deed she wished and meant to execute. Why not? Certainly she could convey her whole estate, if it were conveyed by deed, whose blanks were filled. Why may she not convey a portion whose extent remains undefined, if she has wished and meant so to do? Her real wishes, her perfect knowledge of what she is doing, her entire freedom from the husband's coercion and compulsion, these are the points to which the law looks; and these being settled, her capacity is as great as if dis-covert. In this case, when separate and...

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