Hadley v. Clark

• Decision Date: 07 June 1902
• Citation: 69 P. 319,8 Idaho 497
• Parties: HADLEY v. CLARK
• Court: Idaho Supreme Court

69 P. 319

8 Idaho 497

HADLEY v. CLARK

Supreme Court of Idaho

June 7, 1902

PURCHASER ASSUMING PAYMENT OF MORTGAGE.-When one purchases land, and it is recited in the deed that the land conveyed is subject to a mortgage, the land is as effectually charged with the encumbrance of the mortgage debt as if the purchaser expressly assumed the payment of the debt, or had himself executed the mortgage.

ESTOPPEL.-Where the amount of an existing mortgage is deducted from the purchase price of the encumbered property, and the purchaser assumes to pay it, in such a case he is estopped to deny the validity of the mortgage for any reason.

JOINT EXECUTION BY HUSBAND AND WIFE.-In a mortgage where the husband's name does not appear in the body of the instrument only as a signer thereof, and its execution is duly acknowledged by him, it is as valid as though his name appeared in the same wherever his wife's name appears therein.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed, with costs.

E. E Chalmers, for Appellant.

The mortgages in question appearing to have been executed by N H. Clark and his wife, Evlyn R. Clark, were and are in no sense the mortgages of the husband, N. H. Clark, for the reason that his name does not appear in the recital at the beginning of the instrument, but only at the end of it. (1 Devlin on Deeds, 2d ed., secs. 194, 196-201a; Agricultural Bank of Mississippi v. Rice, 4 How 225; Bachelor v. Brereton, 112 U.S. 396, 404, 5 S.Ct. 180; 9 Am. & Eng. Ency. of Law, 2d. ed., 111.) The defendant Evlyn R. Clark, being the wife of the defendant N. H. Clark, could not make legally the contracts which are set out in the complaint and amended complaint herein. (1 Devlin on Deeds, secs. 900, 101; 15 Am. & Eng. Ency. of Law, 741, and citations.) The pleadings on behalf of the plaintiff in this action do not state facts sufficient to constitute a cause of action, because they do not show that the contract, or contracts, set out therein, were for the use or benefit of her separate property or for her own use or benefit, or that the debt secured by said mortgages was incurred for the use or benefit of the sole mortgagor Evlyn R. Clark, or of her separate property, or for her own use or benefit. (Bassett v. Beam, 4 Idaho 106, 36 P. 501; Dernham v. Rowley, 4 Idaho 753, 44 P. 643.)

John W. Jones and N. H. Clark, for Respondent.

"When one purchases land expressly subject to a mortgage, the land conveyed is as effectually charged with the encumbrance of the mortgage debt as if the purchaser had expressly assumed the payment of the debt or had himself made the mortgage of the land to secure it." (Sweetzer v. Jones, 35 Vt. 317, 82 Am. Dec. 639; Cobb v. Dyer, 69 Me. 494; Fuller v. Hunt, 48 Iowa 163; Woodbury v. Swan, 58 N.H. 380; Manwaring v. Powell, 40 Mich. 371; Berry v. Whitney, 40 Mich. 65. "The amount of an existing mortgage having been deducted from the purchase money of the encumbered property, the grantee in effect undertakes to pay the amount of the purchase money represented by the mortgage to the holder of it and he is as effectually estopped to deny its validity as he would be had he in terms agreed to pay such mortgage." (Johnson v. Thompson, 129 Mass. 398; Quite v. Stevens, 98 Mass. 305; 1 Jones on Law of Real Property, sec. 261; Burke etc. Livestock Co. v. Wells, Fargo & Co., 7 Idaho 42, 60 P. 87.) The fact that the name of N. H. Clark does not appear in the body of the instrument does not render the mortgage void. (1 Jones on Law of Real Property, p. 36, sec. 38; Schley v. Pullman Car Co., 25 F. 890; Woodward v. Seaver, 38 N.H. 29; Stone v. Montgomery, 35 Miss. 83; Thompson v. Lovrein, 82 Pa. 432; Clark v. Clark, 16 Or. 224, 18 P. 1; Ochoa v. Miller, 59 Tex. 460, 462; Hrouska v. Janke, 66 Wis. 252, 28 N.W. 166.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This is an action to foreclose two mortgages. The action was brought by N. H. Clark, Esq., the husband of the defendant Evlyn R. Clark, as attorney for the plaintiff, Hannah Hadley. Subsequently an amended complaint was filed, by which the said N. H. Clark was made a defendant, and John W. Jones, Esq., was substituted as the attorney for the plaintiff. The appellant demurred generally to the amended complaint, which demurrer was overruled, and thereupon appellant answered, and put in issue many of the material allegations of the complaint. After trial judgment was as prayed for in the complaint. This appeal is upon the judgment-roll, and rests upon the general demurrer to the complaint.

The following facts appear from the record: On June 3, 1897, the defendant Evlyn R. Clark purchased the land and premises described in the mortgages referred to in the complaint from the plaintiff, Hannah Hadley, and on July 9, 1897, to secure the purchase price of said land, executed to said Hadley two promissory notes, for $ 325 each, and, to secure the same, executed and delivered the two mortgages sued on herein. Said mortgages were signed by said Evlyn R. Clark and her husband, N. H. Clark, but the husband's name appeared nowhere in said mortgages, except when he signed the same, and in the acknowledgment thereto. That thereafter the said Clarks sold said mortgaged premises to the appellant, C. W. F. Durham, and conveyed the same to him by...