Opinion
No. 40-126.
03-21-1916
PIEBSON v. BEBBY et al.
Elmer King, of Morristown, for complainant. Charles A. Rathbun, of Morristown, for defendants.
Suit by Lemel E. Pierson against Nettie R. P. Berry and others. Bill dismissed.
Elmer King, of Morristown, for complainant. Charles A. Rathbun, of Morristown, for defendants.
STEVENS, V. C. This is a suit to foreclose a mortgage. The property mortgaged had come to the wife by descent, subject to a mortgage for $1,800. Complainant and his wife joined in executing to complainant's father, Louis Pierson, Jr., a bond and mortgage to secure $2,000, money lent to pay off a prior mortgage that had itself been given to take up the $1,800 mortgage. Louis Pierson, Jr., died in 1902, leaving a last will in which he provided as follows:
"I also give and bequeath to said Lemel E. Pierson [the complainant] a bond and mortgage with any accrued interest thereon, made and executed by Jane Emily Pierson and husband on house and lot on Washington St., corner of Atno avenue, Morristown, N. J., being given to me to secure the sum of two thousand dollars."
The wife of complainant died in 1914. They had, at one time, lived in the house, but had afterwards rented it The rents were collected by the husband, who applied them toward paying for what was needed for the support of the household, consisting of himself, his wife, and his children. After his father's death, his father's executors assigned to him the bond and mortgage by formal deed of assignment. Nothing was afterwards done by either husband or wife to indicate that these papers had any vitality. Complainant now seeks to foreclose against his children, the heirs at law of his wife. The question is whether the debt subsists.
The bond being given by husband and wife jointly, both, according to its terms, became equally bound to pay the entire debt. A release given to either, or a payment made by either, would have discharged it as to both. Crane v. Ailing, 15 N. J. Law, 423. The bequest of the bond to complainant was a complete discharge of it as against Louis Pierson's personal representatives. They could not, unless insolvency intervened, have sued either husband or wife to recover the money. If it has any validity as against the wife's heirs, it must be because immediately upon its discharge, the wife became bound to her husband to pay the money. On its face there is no obligation on the wife's part to pay her husband anything. Her obligation, therefore, if there be any, must be implied. Leaving out of view the difficulty that at common law husband and wife cannot contract with each other, implied obligations arise only out of some duty to compensate or indemnify for a benefit conferred or an injury suffered. Here the husband conferred no benefit either upon his wife or upon her separate estate. He did nothing and paid nothing. All that appears is that his father forgave him the debt, and in forgiving him, he necessarily forgave his son's wife also. Thereafter neither he nor his estate had any claim upon her.
But it may be argued that his claim arose out of the obligation that he had assumed to pay back money borrowed for the benefit of his wife's estate. The bond, which is joint and several in form, binds both alike, and the evidence shows that, as a matter of fact, he joined in it as much for his own benefit as for hers. He thereby protected his future estate by the curtesy from foreclosure, and he himself took and used the rents. There is nothing therefore on the facts appearing to indicate that he intended his liability to be secondary. But if he stood in the character of surety, he lost nothing and paid nothing. How then can the law imply an obligation on his wife's part to pay what he was relieved of paying? Under the circumstances, I am at a loss to understand how the wife became her husband's debtor. But if she owed him nothing in respect of the bond, he is in no position to enforce the mortgage, for the mortgage was merely collateral.
The authorities bear out this view. In Cheetham v. Ward, 1 Bos. & Pul. 634, it was held that if the obligee in a joint and several bond make one of two obligors his executor, the action on the bond is discharged as to both obligors. Heath, J., said:
"It is of no consequence whether the release be by operation of law or by a deed demonstrating the intent of the party. For when the obligee actually releases to one as matter of favor, that release affects both."
And in the same case Eyre, C. J., said: "In fact there is but one duty extending to both obligors, and it was therefore pointedly put [in the case cited from the Year Book] that a discharge of one, or satisfaction made by one, is a discharge of both."
Other cases to the same effect are cited in Williams, Ex'rs, vol. 2, *1180.
I think the bill should be dismissed.