Spear v. Ward & Wife

Citations

• 20 Cal. 659
• 1862 Cal. LEXIS 90

Syllabus

<p>The act concerning conveyances authorizes a married woman to execute a mortgage upon her real property without restriction as to purpose or person, and she may execute it for her own debt, or for the debt of her husband, or of any other person, subject to no other restraint than that imposed by the requirement of the joint execution of her husband.</p> <p>Where the wife executes a mortgage upon her separate property for the debt of another, whether that other be her husband or a stranger, she becomes as to that debt a mere surety, and is entitled to all the rights and privileges of that character.</p> <p>Where a bond is given in the usual form, expressing the personal obligation of the husband alone, and in connection with it, a mortgage in the usual form executed by the husband and wife, purporting to cover the separate estate of the wife as well as the interest of the husband in the premises mortgaged, the transaction will, upon its face, create the presumption that the wife is a mere surety for the husband's debt.</p> <p>The presumption of the suretyship of the wife may be repelled by proof aliunde, showing that the debt secured was created for her benefit or that of her estate; and on like grounds, the presumption will be destroyed by a recital in the mortgage of a fact inconsistent with the theory that the wife contracted as a surety.</p> <p>The wife being empowered to execute a mortgage, is prima facie bound by the clause stating the consideration of its execution. Such clause, subject to certain qualifications, is open to explanation and may be varied by parol proof; but in the absence of such explanation or proof, the clause is deemed to express the true consideration.</p> <p>W. executed a bond to S., conditioned for the payment by him of six thousand dollars in one year with interest; and at the same time, as security for its payment, W. and wife executed a mortgage upon the separate property of the wife, which mortgage recited as the consideration of it