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Chaffee v. Browne

Supreme Court of California
Sep 26, 1895
109 Cal. 211 (Cal. 1895)


In Chaffee v. Browne it is held that a mortgage given by the wife upon her separate property to secure her husband's antecedent debt, without any new consideration received either by the husband or wife or moving from the creditor, is a nudum pactum, and, therefore, not of binding force upon the wife.

Summary of this case from Dunlap v. Sunset Lumber Co.


         Department Two

         Hearing In Bank Denied. Beatty, C. J., Dissented from the Order Denying a Hearing In Bank.

         Appeal from a judgment of the Superior Court of Ventura County and from an order denying a new trial. B. T. Williams, Judge.


         The mortgage, having been made for the accommodation of the husband to secure his antecedent indebtedness, and there being no new consideration therefor, is without consideration. (Civ. Code, secs. 2792, 2831, 2844; Jones on Mortgages, secs. 458, 615; Comstock v. Breed , 12 Cal. 288; Leverone v. Hildreth , 80 Cal. 139.) Partial failure of consideration is a defense pro tanto. (2 Jones on Mortgages, sec. 1490; 6 Wait's Actions and Defenses, sec. 4, p. 577; 2 Parsons on Contracts, 462 et seq.; 2 Pomeroy's Equity Jurisprudence, sec. 925 et seq.; Braly v. Henry , 71 Cal. 481; 60 Am. Rep. 543; 6 Wait's Actions and Defenses, sec. 5, p. 580, and authorities there cited.) A parol promise to pay an indebtedness discharged in insolvency cannot bind the defendants. (Code Civ. Proc., sec. 360; Civ. Code, secs. 2911, 2922.) The release extinguished the debt. (Rhine v. Ellen , 36 Cal. 362.) The acknowledgment of the indebtedness cannot affect the mortgage of Mrs. Browne, or impose upon her any personal liability. (See Civ. Code, sec. 2828; Hickox v. Lowe , 10 Cal. 210; Van Orden v. Durham , 35 Cal. 136; Curtis v. Sacramento , 70 Cal. 414 et seq.; McCormick v. Brown , 36 Cal. 180; 95 Am. Dec. 170; Union W. Co. v. Murphy's Flat Fluming Co ., 22 Cal. 627.) Nonpayment is a material allegation. (Ward v. Clay , 82 Cal. 511; Frisch v. Caler , 21 Cal. 71; Davanay v. Eggenhoff , 43 Cal. 395; Roberts v. Treadwell , 50 Cal. 520; Scroufe v. Clay , 71 Cal. 123; Richards v. Travelers' Ins. Co ., 80 Cal. 506; Grant v. Sheerin , 84 Cal. 200; Curtiss v. Bachman , 84 Cal. 216; Barney v. Vigoreaux , 92 Cal. 631.) The acknowledgment of the indebtedness could not reinstate the lien of the mortgage. (Civ. Code, secs. 2911, 2922; Wells v. Harter , 56 Cal. 342; Henderson v. Grammar , 66 Cal. 332, 336.)

         H. L. Poplin, for Appellants.

          W. H. Wilde, for Respondents.

         A married woman who mortgaged her separate property for the debt of the husband does so as principal, and is liable for the deficiency. (Alexander v. Bouton , 55 Cal. 15; Burkle v. Levy , 70 Cal. 250; Goad v. Moulton , 67 Cal. 536.) Husband and wife contract toward each other obligations of mutual support. (Civ. Code, secs. 155, 176.) The moral obligation of an antecedent debt, whether barred by insolvency or limitation, is a sufficient consideration for a new promise. (McCormick v. Brown , 36 Cal. 180; 95 Am. Dec. 170; Farrell v. Palmer , 36 Cal. 187; Chabot v. Tucker , 39 Cal. 434; Biddel v. Brizzolara , 56 Cal. 374.) Defendants are estopped by the recitals in the mortgage. (Code Civ. Proc., sec. 1962, subd. 2; Bigelow on Estoppel, 4th ed., 371, and note; Coles v. Soulsby , 21 Cal. 47; Hendrick v. Crowley , 31 Cal. 472; Rhine v. Ellen , 36 Cal. 362; Pierce v. Whiting , 63 Cal. 538; Graham v. Stewart , 68 Cal. 374; Waldrip v. Black , 74 Cal. 409; Carty v. Connolly , 91 Cal. 15.)

         JUDGES: Britt, C. Belcher, C., and Searls, C., concurred. Henshaw, J., Temple, J., McFarland, J.


          BRITT, Judge

         Action for the foreclosure of a mortgage made by defendants A. W. Browne and his wife, Neotia Browne, in favor of plaintiffs, who are copartners in business under the firm name of Chaffee, Gilbert & Bonestel. The mortgage bore date December 10, 1890, but was not in fact executed until May 26, 1891; it recited that the mortgagors, residents of the county of Ventura, are jointly and severally indebted to the mortgagees in the sum of $ 1,442.47 for goods, wares, and merchandise theretofore had and received by them, the mortgagors, from said mortgagees; that said Neotia is a child and heir at law of Peter Rice, deceased, "whose estate is in administration in said Ventura county, and as such heir at law is the owner of an undivided interest in the estate of said deceased, and therein is and will be entitled to her share in said estate when the [41 P. 1029] same shall be settled and distribution thereof made; reference being had to the proceedings, files, papers, documents, and records of the administration of the estate of said deceased in the superior court in and for the county aforesaid for a more full and complete description of property, rights, and credits of said estate, and the interest of said Neotia Browne therein"; that said Neotia desires to give to the mortgagees a mortgage lien upon her interest in said estate to secure payment of said indebtedness. It is then declared that in consideration "of the premises and of the indebtedness hereinabove named justly due from the said A. W. Browne and the said Neotia Browne to the said Chaffee, Gilbert & Bonestel, I, the said Neotia Browne, the mortgagor, hereby. .. . mortgage to the. .. . mortgagees, all and singular my estate, right, title, interest, claim, or advantage, of whatsoever kind or nature, that I have, or may or can have in the estate of said Peter Rice, deceased, as a child and heir at law of the said Peter Rice, deceased, now being administered. .. . as aforesaid, to secure the indebtedness hereinabove named, together with the interest accrued and to accrue thereon." It was further provided that in default of payment the mortgagees might foreclose the mortgage and have the interest of said Neotia in the property coming to her from the said estate sold to pay the amount due to them, etc.

         The fact was that Peter Rice left a will which was probated in said superior court, and the interest which Mrs. Browne had in his estate was under the will, and not as heir at law in the technical sense; and previously to the execution of the mortgage, viz., on February 3, 1891, the estate of said Rice had, by decree of said court, been distributed to the persons entitled under the terms of the will in undivided shares; the decree was filed on said February 3d, and it specifically described the property distributed; thereby a first interest of $ 1,000 in value was set over to one Lucretia Bell, and to Mrs. Browne was allotted an undivided one-fourth of the residue. Among the tracts of real estate thus distributed was a certain lot in the town of San Buenaventura. On March 17, 1893, plaintiffs, at request of the Brownes, released from the mortgage a part of the lands mentioned in said decree; such release was signed by Browne and wife, as well as plaintiffs, and recited the indebtedness to plaintiffs much the same as in the mortgage. On April 4, 1893, the distributees named in such decree, for the purpose of making partition of the lands set over to them by the terms thereof, executed deeds among themselves, by virtue of which Mrs. Browne became and is yet the owner of the whole of said town lot as and for her share of the lands before held in common; the court below decreed that this lot be sold for the payment of the expenses of the action and the amount due plaintiffs as provided in the mortgage, and that plaintiffs have execution for any deficiency against Browne and wife.

         Defendants pleaded, among other alleged defenses and partial defenses, that the mortgage was executed by Mrs. Browne without consideration. The court found that in the year 1889 A. W. Browne was indebted to plaintiffs in the amount of $ 593.93 for provisions, wearing apparel, and other family necessaries, which plaintiffs "had theretofore sold and delivered to said A. W. Browne and Neotia Browne, his wife"; that on June 26, 1889, said A. W. Browne made a transfer of certain property to plaintiffs and others, and plaintiffs, in consideration thereof, released the said indebtedness of A. W. Browne to them; that about July 1, 1889, A. W. Browne was adjudged an insolvent debtor; and thereafter, with his approval, plaintiffs delivered to his assignee, for the benefit of his creditors, all the property transferred to them, as above stated, on June 26, 1889; whereby their release of said sum of $ 593.93 owed by him was "made null, void, and noneffect"; that after his discharge as such insolvent -- which was granted April 21, 1890 -- said A. W. Browne promised to pay plaintiffs said sum of $ 593.93, notwithstanding his discharge in insolvency; that after July 1, 1889, and thenceforward until October, 1890, A. W. and Neotia Browne purchased of plaintiffs goods, etc., consisting of groceries, provisions, wearing apparel, and other family necessaries, to the amount of $ 848.54; which goods were charged in account upon the books of plaintiff to A. W. Browne, but the greater portion thereof were in fact purchased by said Neotia; that on December 10, 1890, plaintiffs presented to A. W. Browne a memorandum containing the figures denoting the amount then due from him and his said wife, viz., $ 1,442.47, consisting of said sums of $ 593.93 and $ 848.54; and thereupon and thereafter Browne and wife promised to pay plaintiffs the sum of $ 1,442.47, "upon the account so stated between them"; that the mortgage in suit was executed to secure the payment of said sum last named, and was made for a good and valuable consideration.

         At the trial the evidence regarding the question of consideration was in substance this: Mr. Chaffee, one of the plaintiffs, testified that the indebtedness was for "goods, wares, and merchandise furnished Mr. Browne and family, nine-tenths of it, at least, to Mrs. Browne; the item of $ 593.93 was for merchandise sold A. W. Browne prior to July 1, 1889, and the books were balanced as to that account on the 2d day of July, 1889, when the receipt was given on the 1st of July, 1889, and the account of A. W. Browne was continued right along until October 8, 1890. I never had any conversation with Mrs. Browne about it at any time; I had charge of the business during all that time; we never had any account on our books against Mrs. Browne; the account is A. W. Browne, [41 P. 1030] charged up to him; it was his family expenses. Q. Did Mrs. Browne ever authorize you to charge anything to her? A. Yes; by reason of her purchase of it. Q. Why did you put it to Browne's account and charge it to him? A. Because it was all in the family." Mr. Gilbert, also one of the plaintiffs, testified that in the fall of the year 1890 he presented to A. W. Browne a statement of the amount due the firm; this consisted of two items, $ 593.93 and $ 848.54, making $ 1,442.47; that Browne seemed satisfied, and said his wife had agreed to transfer her interest in her father's estate to secure the debt; that about December 10, 1890, he, the witness, saw Mrs. Browne, and she said "that Mr. Chaffee had been kind to them, and she was going to see that we didn't lose a cent by them." A. W. Browne testified that for some time after July 1, 1889, he had purchased supplies and provisions for his family from plaintiffs; that he knew his wife was purchasing goods of plaintiffs on his account after the insolvency proceedings. Mrs. Browne testified that she never had any conversation with plaintiffs about the indebtedness; that after her husband's insolvency she continued to purchase goods of plaintiffs -- groceries and provisions and dry goods and supplies for herself and children and family.

         The appellants urge very many objections upon the record, and the case is prolific of disputed points; since in our opinion a new trial should be had, some of these questions, not necessary to the determination of the appeal, may be here noticed. Thus the objection to the complaint that it does not allege nonpayment of the sum demanded is not tenable; it does show with reasonable certainty that at the time the mortgage was given the debt recited was already due and unpaid; there was no occasion to reiterate the fact in terms. The description in the mortgage of the property to be charged with the intended lien was sufficient to warrant the action of the court in directing the sale of the real estate which, in virtue of the common deeds of release executed by the devisees of Peter Rice, became the property of Mrs. Browne in severalty. Although at the time of the execution of the mortgage the estate of Rice had been distributed, and so withdrawn from administration (Bates v. Howard , 105 Cal. 183), yet the mortgage refers to the files and records of the administration for a more complete description of the interest to be encumbered, and among such files was the decree of distribution, which showed the specific property in which Mrs. Browne took an interest, and the extent of her right. The recitals and references contained in the mortgage make it manifest that by mention of Mrs. Browne's interest "as child and heir at law" was meant whatever property she took in the estate of her deceased father. We do not understand that Emeric v. Alvarado , 90 Cal. 461, is opposed to this conclusion.

         So we see no error in overruling the partial defense of Browne's discharge in insolvency; the demand in suit, to the extent of $ 593.93, accrued before the commencement of the insolvency proceedings, but it clearly appeared that after his discharge Browne promised to pay the same; the promise was binding on him. (Chabot v. Tucker , 39 Cal. 437.) The release given to him June 26, 1889, seems to have been rescinded for failure of consideration. It appears unnecessary to inquire how those matters concern Mrs. Browne, if at all. Nor do we think that the plea of the statute of limitations (Code Civ. Proc., sec. 339, subd. 1) was sustained; the action was begun July 12, 1893, and as late as the month of March previous the appellants had signed, with the plaintiffs, the instrument releasing from the mortgage a part of the encumbered property; such instrument referred to the alleged indebtedness in such terms as, fairly considered, constituted an acknowledgment thereof; the running of the statute was thus interrupted. (McCormick v. Brown , 36 Cal. 180; 95 Am. Dec. 170.)          It may be that the personal liability of A. W. Browne for the whole amount claimed is made out, but the judgment against Mrs. Browne and her property cannot stand, unless we are to depart from rules of law which have been regarded as well established. The law justly imposes upon the husband the duty to maintain his wife and children, and does not absolve him of this duty save under exceptional circumstances; the evidence here shows only the ordinary case where the wife living with the husband obtains on his credit the supplies needed in the conduct of their common domestic establishment; for such purposes she is his agent, and incurs no personal liability; this is matter of common knowledge, and when persons furnishing to families supplies of the character appearing here expect to charge the wife therefor, they must take care that they have a contract for her personal credit; this will not be implied from the mere circumstance that she personally obtains the goods. In a case in Michigan the dealer had charged the goods to the wife, and sued her for the price; the court said: "If he knew that she was a married woman, living with her husband, and the goods were not of a character to indicate that they were bought for other than family use in the husband's family, and she did not claim affirmatively to be purchasing them on her individual account, the natural inference would be that she was purchasing them on her husband's account, and for the use of his family, and she could not be made individually liable without an express agreement to become so, or that the goods should be charged, or the credit given to herself." (Powers v. Russell , 26 Mich. 184.) Flynn v. Messenger , 28 Minn. 208, [41 P. 1031] 41 Am. Rep. 279, is yet stronger in the same direction. Before such a demand can be charged in equity upon the wife's separate estate, there must be clear proof that she contracted the debt in her own behalf, or intended to bind her separate estate for its payment. The fact that the husband is insolvent, or unable to sustain the whole charge of the family's support, does not affect the rule. (Dodge v. Knowles , 114 U.S. 430; Magee v. White, 23 Tex. 180; Haynes v. Stovall, 23 Tex. 625.) The intention to extend the credit to the wife and not to the husband must be expressly declared, or otherwise communicated to her. (Rushing v. Clancy , 92 Ga. 769.) In the present case the goods were all charged to the husband's account, and the wife's personal responsibility therefor was neither offered nor required before the whole debt had accrued.

         But respondents claim that defendant Neotia is concluded by the recitals in the mortgage to the effect that she and her husband are jointly and severally indebted to plaintiffs for goods, etc., had and received by them from plaintiffs. Coles v. Soulsby , 21 Cal. 47, and other cases of like nature are cited in support of the proposition; the doctrine of those cases has no application here; it was always limited to the protection of the operative words of conveyance in a grant of property (Feeney v. Howard , 79 Cal. 530; 12 Am. St. Rep. 162), and never extended to executory covenants even in the same instrument; to allow it effect as contended by respondents would be to forbid inquiry into the consideration of every promissory note recited in a mortgage given for its security, which is not the law. (Jones v. Jones, 20 Iowa 388.) Said recitals, relating as they do to the consideration of the mortgage, do not estop. (Code Civ. Proc., sec. 1962, subd. 2; compare Moffatt v. Bulson , 96 Cal. 106; 31 Am. St. Rep. 192; Rosenberg v. Ford , 85 Cal. 610; Bayler v. Commonwealth , 40 Pa. St. 37; 80 Am. Dec. 551.)

         It follows that in the execution of this mortgage the defendant Neotia Browne undertook to assume and secure her husband's antecedent debt. "No new consideration was given at the time it was executed. The wife received nothing, the husband received nothing, the creditor parted with nothing. The instrument was, therefore, no more than a collateral security given for an old debt of the husband" (Bayler v. Commonwealth , 40 Pa. St. 37; 80 Am. Dec. 551), and was not obligatory in the absence of a new consideration. (Civ. Code, secs. 2792, 2831, 2844; Bohm v. Hoffer, 2 Col. App. 146.) The judgment and order should be reversed, and the cause remanded for a new trial.

         For the reasons given in the foregoing opinion the judgment and order are reversed and the cause remanded for a new trial.

Summaries of

Chaffee v. Browne

Supreme Court of California
Sep 26, 1895
109 Cal. 211 (Cal. 1895)

In Chaffee v. Browne it is held that a mortgage given by the wife upon her separate property to secure her husband's antecedent debt, without any new consideration received either by the husband or wife or moving from the creditor, is a nudum pactum, and, therefore, not of binding force upon the wife.

Summary of this case from Dunlap v. Sunset Lumber Co.
Case details for

Chaffee v. Browne

Case Details

Full title:W. S. CHAFFEE et al., Respondents, v. A. W. BROWNE et al., Appellants

Court:Supreme Court of California

Date published: Sep 26, 1895


109 Cal. 211 (Cal. 1895)
41 P. 1028

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