Crosby v. Clem

• Decision Date: 19 May 1911
• Parties: CROSBY v. CLEM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 193

95 N.E. 297

CROSBY v. CLEM.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1911

COUNSEL

C. R. Elder, for appellant.

J. H Vahey and P. Mansfield, for appellee.

OPINION

RUGG J.

This is a suit in equity to restrain the foreclosure of a mortgage. The bill alleges that the plaintiff excuted a mortgage of personal property to the defendant, and that it was assigned afterwards to the wife of the plaintiff. A justice of the superior court found as facts that in 1908 the wife of the plaintiff, at her husband's request, paid $2,000 from her private property as the purchase price for the conveyance to the plaintiff of a stock of goods. Later, trouble having arisen between the two and the wife having filed a libel for divorce, an agreement was made that the husband should give to the wife $500, and to the defendant, who was the wife's brother, a note for the $2,000 so advanced by her, to be secured by a mortgage on what remained of the stock of goods bought with her money and subsequent purchases, and that the wife should suspend the divorce proceedings. This arrangement was carried out. The note and mortgage were executed accordingly, and made payable and delivered to the defendant. He immediately indorsed the note in blank, and assigned the mortgage to the plaintiff's wife, and delivered them to her. She thereafter retained possession of them until November, 1910 when she assigned the mortgage to the defendant without consideration, who commenced the foreclosure.

It is settled in this commonwealth that even under recent statutes a husband cannot contract directly with his wife.

But it has been repeatedly decided that since the removal of the common-law disabilities of a wife there is nothing in law to prevent the husband from executing and delivering to a third person a valid note, mortgage or security for money advanced by her to the husband or for his benefit.

A wife may take and hold a transfer of a note or mortgage against her husband without extinguishing either. MacKeown v. Lacey, 200 Mass. 437, 86 N.E. 799, 21 L. R. A. (N. S.) 683. The wife cannot enforce such obligations against her husband in her own name during his life, but she may against his estate after his death, and she may transfer a good title to others during his life.

The note and mortgage were valid at their inception, having been as alleged in the bill and found by the court, executed and delivered to a third person. This legality was not impaired by the fact that they were at once assigned to the wife. If the transaction is genuine, as in this case, the length of time that the title is held by the third person is of no consequence, though where the facts are controverted this element may be significant evidence. It has not been argued that the mortgage and note are affected because given in the course of an adjustment of other difficulties between husband and wife, one element of which was a suspension of divorce proceedings already begun. See Merrill v. Peaslee, 146 Mass. 460, 16 N.E. 271, 4 Am. St. Rep. 334; Newsome v. Newsome, L. R. 2 P. & D. 306. Apparently this was severable, relating to a...