Williams v. Hayward
| Decision Date | 08 May 1875 |
| Citation | 117 Mass. 532 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Thomas B. Williams v. Samuel E. Hayward & wife |
Suffolk. Contract on a joint and several note signed by the defendants under date of November 15, 1873, and payable to the plaintiff or order in one year from date. Writ dated November 20, 1874. The case was submitted to the judgment of the Superior Court, and to this court on appeal, on an agreed statement of facts in substance as follows:
The note was given in settlement of a judgment against the husband only, on which execution issued and an arrest was ordered. The execution was returned satisfied on this note being given. The note was secured by a mortgage of the wife's separate real estate, duly executed in her own right to the plaintiff, in the usual form, with a power of sale. The husband was defaulted, and the wife alone defends.
Judgment for the female defendant.
M. Williams, Jr. & C. A. Williams, for the plaintiff.
N. C. Berry, for the female defendant.
This note was given in payment of a judgment obtained against the husband. The consideration was the husband's debt, and the note was not given in reference to the wife's separate property. Athol Machine Co. v. Fuller , 107 Mass. 437. Burns v. Lynde, 6 Allen 305, 313.
The fact that the note was secured by mortgage on her real estate does not render her liable on the note; Heburn v. Warner, 112 Mass. 271; and the memorandum on the note, that it is so secured, is merely a recital of a fact, that does not change the character of the note as a contract, and make it binding upon her.
Whether the plaintiff may have a remedy on the mortgage it is not necessary to consider in this case. See Bartlett v. Bartlett, 4 Allen 440; Willard v. Eastham, 15 Gray 328; Heburn v. Warner, supra.
Judgment for the female defendant.
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