Thacher v. Churchill

• Decision Date: 24 June 1875
• Citation: 118 Mass. 108
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Annie B. Thacher v. Joseph R. Churchill, trustee, & others

118 Mass. 108

Annie B. Thacher v. Joseph R. Churchill, trustee, & others

Supreme Court of Massachusetts

June 24, 1875

Suffolk. Bill in equity against Joseph R. Churchill, trustee Reuben A. Richards, John E. White, and George E. Richards copartners under the firm name of Richards & Co., and Charles A. White, praying that a certain mortgage of land and a promissory note executed by the plaintiff and her husband William T. Thacher, jointly, be declared void, the mortgage cancelled, and the mortgaged estate reconveyed to her by the first named defendant.

Hearing before Colt, J., who reserved the case for the consideration of the full court upon a report, the substance of which appears in the opinion.

Bill dismissed.

W. H. H. Andrews, (C. L. Woodbury with him,) for the plaintiff.

A. Churchill, for the defendants, was not called upon.

Morton, J. Ames & Endicott, JJ., absent.

OPINION

Morton, J.

It appears from the report that the plaintiff, jointly with her husband, signed a promissory note for five thousand dollars payable to the defendant Churchill, trustee, or order, and at the same time executed a mortgage of her separate real estate to secure the note, her husband joining in the mortgage. No consideration was paid by Churchill at the time, but the note and mortgage were made under the following circumstances:

The defendant White was under certain liabilities for William T. Thacher, the husband of the plaintiff, and Thacher, being desirous of borrowing money of the other defendants, who compose the firm of Richards & Co., proposed to give as security for such desired loan and advance, a note and mortgage upon his wife's property, running to said Churchill trustee, to be held by him in trust to secure such loans and advances as should be made by said Richards & Co., and the preexisting liability of said White. In pursuance of this the note and mortgage in question were made and delivered to Churchill, who accepted the same upon said trusts.

Afterwards Richards & Co., in good faith and relying upon said security, made advances to said Thacher, a part of which is due and unpaid.

The justice who presided at the hearing has found that the plaintiff executed the note and mortgage voluntarily, and without any fraud or undue influence.

Upon these facts there is no principle of equity upon which the plaintiff can avoid the mortgage. If, by reason of her coverture, she is not liable to a personal action on the note, yet it is valid against her husband, and the mortgage by her of her separate property to secure it is valid and binding. Bartlett v. Bartlett, 4...