DRURY V. FOSTER, 69 U. S. 24 (1864)

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U.S. Supreme Court

Drury v. Foster, 69 U.S. 2 Wall. 24 24 (1864)

Drury v. Foster

69 U.S. (2 Wall.) 24


A paper, executed, under seal, for the husband's benefit, by husband and wife, acknowledged in separate form by the wife, and meant to be a mortgage of her separate lands, but with blanks left for the insertion of the mortgagee's name and the sum borrowed, and to be filled up by the husband, is no deed as respects the wife, when afterwards filled up by the husband and given to a lender of money, though one bona fide and without knowledge of the mode of execution. The mortgagee, on cross-bill to a bill of foreclosure, was directed to cancel her name.

Foster, of Minnesota, being about to engage in some enterprise and wanting money, asked his wife, who owned, in her separate right, a valuable tract of land in that state, to mortgage it for his benefit. What exactly was said or promised did not appear. However, Foster afterwards went to a notary, who exercised, as it seemed, the business of a scrivener also and directed him to draw a mortgage of the property, with himself and wife as mortgagors, but leaving the name of the mortgagee, and the sum for which the land was mortgaged, in blank. This the magistrate did. Foster acknowledged the deed at the magistrate's office in this shape, and the magistrate then took the instrument to Mrs. Foster at her husband's house, that she might sign and acknowledge it in the same shape. When the magistrate took the mortgage to her thus to execute, Mrs. Foster said

"she was fearful that the speculation which her husband was going into would not come out right; that she did not like to mortgage that place, but that he wanted to raise a few hundred dollars, or several hundred dollars, or something to that effect"

-- the magistrate, who was the witness that gave the testimony, did not recollect the exact expression which she used -- "and that she did not like to refuse him, and that so she consented to sign the mortgage." Mrs. Foster having signed the instrument in this blank shape, the notary, under his hand and seal, certified, in form, that the husband and wife, "the signers and sealers of the foregoing deed," had personally appeared before him, "and acknowledged the signing and sealing thereof to be their voluntary act and deed, for the uses

Page 69 U. S. 25

and purposes expressed," and that the wife,

"being examined separate and apart from her said husband, and the contents of the foregoing deed made known to her by me, she then acknowledged that she executed the same freely, and without fear or compulsion from anyone."

Such form of separate acknowledgment, it may be well to say, is required by statute, in Minnesota, to give any effect to a feme covert's deed. After taking the wife's acknowledgment, the notary gave the instrument to her husband. He, finding the complainant, Drury, willing to lend as much as $12,800 upon the property, himself filled up the blanks with the name of Drury, as mortgagee, and with the sum just mentioned as the amount for which the estate was mortgaged. In this form, the instrument was delivered to Drury, who, knowing nothing of the facts, advanced the money in good faith, and put his mortgage on record. There was no evidence that the wife derived any benefit from the money advanced, or that she ever knew that such a large sum was advanced.

On a bill of foreclosure brought four years afterwards by Drury against Foster and wife, in the Federal Court for Minnesota, the defense was that the mortgage was not the wife's deed -- a defense which the court below thought good as to her. It accordingly dismissed the bill as regarded her, giving a decree, however, against the husband. The correctness of its action as regarded the wife was the question on appeal here.

Page 69 U. S. 33

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