Carley v. Fox

• Decision Date: 01 February 1878
• Court: Michigan Supreme Court
• Parties: Jane P. Carley v. James Charles Fox

38 Mich. 387

Jane P. Carley v. James Charles Fox

Supreme Court of Michigan

February 1, 1878

Submitted January 25, 1878

Appeal from Berrien.

Bill to set aside foreclosure. Defendant appeals.

Decree affirmed with costs.

George S. Clapp for complainant. A wife who mortgages her property for her husband's debt has the rights of a surety, and the husband's property is the primary fund for the payment, Fitch v. Cotheal, 2 Sandf. Ch., 29; Bayler v. Com., 40 Penn. St., 37; Vartie v. Underwood, 18 Barb. 561; Schouler's Dom. Rel., 155; 1 Phil. Ev., C. & H. notes, note 177, p. 612; the wife is entitled to protection against any act of his creditors destructive of her rights, Ayers v. Husted, 15 Conn. 517; Johns v. Reardon, 11 Md. 465, and on foreclosure, the husband's estate should be first sold, Sheidle v Weishlee, 16 Penn. St., 137; the equitable rule of marshalling assets and selling in the inverse order of conveyance does not apply where a primary fund is originally created for the satisfaction of the mortgage, Mason v. Payne Walk. Ch., 459; Cooper v. Bigly, 13 Mich. 475; Caruthers v. Hall, 10 Mich. 41; Sibley v Baker, 23 Mich. 315; Woollen's Ex'rs v. Hillen, 9 Gill 195.

Potter & Potter for defendant. A wife who joins with her husband in a conveyance is estopped by her covenant, Colcord v. Swan, 7 Mass. 291; Doane v. Willcutt, 5 Gray 332; where mortgaged premises have been sold in parcels, they should be sold on foreclosure in the inverse order of the conveyances, Ireland v. Woolman, 15 Mich. 253; McKinney v. Miller, 19 Mich. 142; a wife may mortgage her lands for her husband's debt, Watson v. Thurber, 11 Mich. 457; De Vries v. Conklin, 22 Mich. 259.

OPINION

Cooley, J.

The bill in this case was filed to set aside a statutory foreclosure of a mortgage. The facts important to its decision are the following: In May, 1873, George Carley, the husband of complainant, conveyed to defendant a farm in Benton township, subject to the payment by defendant of a mortgage thereon for two thousand dollars. It is conceded that by accepting this conveyance defendant became personally liable for the payment of the mortgage under the decision of this court in Crawford v. Edwards, 33 Mich. 354. The farm was also subject at this time to another mortgage for $ 945 given by George Carley and complainant, and covering besides this, certain property in St. Joseph owned by complainant. The latter mortgage was given for the debt of George Carley, and Mrs. Carley, in respect to her lands covered by it, was entitled to all the rights of a surety. Carley's deed to the defendant made no exception in respect to the last-mentioned mortgage, and as the deed was one of warranty, defendant was entitled to protection from Carley as against it, but he had no corresponding right as against complainant, who, though she joined in the deed conveying it, could not be liable upon the covenants. Hovey v. Smith, 22 Mich. 170, 172.

From this statement it appears that the farm was the first fund for the satisfaction of the mortgage for $ 945, and that complainant had a right to insist that it be first sold for that purpose. We also think that her release of her contingent right of dower in the farm to defendant, gave her a right to insist for her own protection upon his performance of...