Bouton v. Welch

• Decision Date: 08 April 1902
• Parties: BOUTON v. WELCH et al.
• Court: New York Court of Appeals Court of Appeals

170 N.Y. 554

63 N.E. 539

BOUTON

v.WELCH et al.

Court of Appeals of New York.

April 8, 1902.

Appeal from supreme court, appellate division, Third department.

Action by De Witt C. Bouton, executor of Gershom Hanford, against Alice Welch and others. From a judgment of the appellate division (69 N. Y. Supp. 407) affirming a judgment for defendant Welch, plaintiff appeals. Affirmed.

Cullen and Vann, JJ., dissenting.

M. N. Tompkins, for appellant.

George B. Davis, for respondents.

WERNER, J.

This action, which was commenced in the county court of Tompkins county, was brought to foreclose a mortgage given by William Welch to Gershom Hanford, the plaintiff's testator. The defendant Alice Welch, who is the wife of said William Welch, claimed title to said mortgage. Counsel being in doubt as to the power of the county court to grant the proper relief upon the issues which would necessarily be presented by conflicting claims of title to the mortgage, the case was by stipulation removed into the supreme court. The judgment entered upon the referee's report establishing the title to said mortgage in the defendant Alice Welch, having been unanimously affirmed by the appellate division, is conclusive upon us, if no legal error was committed in the reception or exclusion of evidence. A number of exceptions taken to the rulings of the referee are presented to us as grounds for reversal, but the only one which we deem it necessary to discuss is whether the testimony of William Welch, the husband of the defendant Alice Welch, was competent, under section 829 of the Code of Civil Procedure. A brief statement of the facts relating to the execution of the mortgage, and of said Alice Welch's claim of title thereto, is essential to an understanding of this question. Plaintiff's testator, a childless widower of means, was the uncle of the said Alice Welch. The latter and her husband lived upon a farm known as the ‘Axford Farm’ in the town of Danby, Tompkins county, consisting of about 30 acres, and worth about $1,000. Said testator owned a farm in the same town called the ‘Grant Farm’ valued at about $2,000. In the fall of 1886 the house upon the Axford farm, occupied by the Welches, was destroyed by fire. At this juncture plaintiff's testator and William Welch met and entered into an agreement for an exchange of the two farms. The latter was to take the Grant farm, and the former was to receive the Axford farm and a purchase-money mortgage of $2,000 upon the Grant farm. The claim of the defendant, which was established to the satisfaction of the courts below, is that this mortgage was to be her property after said testator's death. The only testimony presented in support of this claim was that of William Welch, the husband of the successful defendant Alice Welch, and this is the testimony that is challenged as incompetent under section 829 of the Code of Civil Procedure. We think the objection is not good. The language of the statute as paraphrased to fit this case is that ‘a party or person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor,’ etc. As the witness Welch had withdrawn his answer prior to the trial, he was no longer a party in any such sense as to disqualify him on that ground alone. But it is urged that he was the ‘person from, through or under whom’ the interested party (his wife) derived her interest or title. Let us see. The subject of the controversy is a mortgage. It was the property of the plaintiff's testator. It had been held by him under an agreement that upon his death it should become the property of his niece, the defendant Alice Welch. Upon the death of the former it became the property of the latter; for the court has so found. Did she get it through her husband, William Welch, or her uncle, Gershom Hanford? The answer, it seems to us, is obvious. The husband never had any interest in the mortgage. It was clearly the property of the uncle. The fact that it was a mortgage upon the farm which the husband had acquired from the uncle, and that the mortgaged farm was received in exchange for a farm which had previously belonged to the husband, does not change the situation. The mortgage was as distinctly and unequivocally the property of the plaintiff's testator as though it had been a mortgage upon the farm of John Doe instead of William Welch. Her title was not a derivative one, secured from, through, or under the husband, but was clearly an original and independent title, so far as her husband was concerned, which she derived directly from her uncle. Healy v. Healy, 55 App. Div. 315,66 N. Y. Supp. 927, affirmed in 166 N. Y. 624, 60 N. E. 1112;Godine v. Kidd, 64 Hun, 585, 19 N. Y. Supp. 335. Suppose that the testator, instead of taking a mortgage, had insisted upon receiving the sum of $2,000 in cash in the trade, and that the testator had agreed to deposit it to his own use during life, and to arrange for a transfer of the principal to his niece, the defendant, at his death; could it be claimed that the latter's interest or title in the money was derived ‘from, through or under’ her husband? We think not, and we perceive no distinction in principle between such a case and the case at bar. Nor are we embarrassed in this conclusion by the circumstance that the promise upon which the defendant Alice Welch's title to the mortgage is founded was made by the plaintiff's testator to said defendant's husband. A promise made to a husband by a third party for the benefit of the wife can be enforced by the latter. Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724, 44 L. R. A. 170, 70 Am. St. Rep. 454. It does not follow, as has been suggested, that because the husband's obligation to provide for the wife is a sufficient legal consideration to support the promise of a third person for the benefit of the wife, the fruit of such promise is derived ‘from, through or under’ the husband. On the contrary, there are many cases in which the product of the promise is property in which the husband never would or could have any interest whatever. In such a case the law simply makes use of the husband's obligation to provide for the wife in order to...