I concur in the judgment of affirmance, but I am not satisfied with that part of the opinion of the court — the concluding portion — which deals with appellant's contention as to the application of sections 158 and 2235 of the Civil Code to the various transactions between these parties. It is no answer to appellant's position to say that these were transactions between the Shorbs on one side and the plaintiff on the other, and to argue that therefore they did not involve transactions between the husband and wife, for the argument is on its face a nonsequitor. One transaction may, and very frequently does, not only involve, but essentially depend upon, another, and no better illustration of this proposition could be found than in the circumstances attending the transaction of October 1887, when the Shorbs executed and delivered their joint note for $51,000, secured by appellant's deed conveying her separate property, in satisfaction or renewal of her husband's obligations. The making and delivery of the note and deed was undoubtedly a transaction between them and the plaintiff, but none the less it involved, and was vitally dependent upon, the preliminary transaction beween the spouses by which the husband induced his wife to make herself and her property surety for his debt. If it be conceded that the provisions of sections 158 and 2235 of the Civil Code apply to a voluntary transfer of her separate property by a wife to her husband they would not — aside from the question of notice — cease to be applicable as soon as the husband had conveyed the property to a third person. If the husband had obtained the property by the exercise of undue influence, and his grantee took with notice, either actual or constructive, of that fact, he would hold the property subject to the same trust which attached to it in the hands of the husband. In other words, he would not be allowed *Page 696 to keep it, but would be compelled on her demand to reconvey it to the wife.
And, upon the same principle, if a wife should be induced by the fraud of the husband to hypothecate her separate property to secure his antecedent debt, and the creditor had notice of the fraud, he could not enforce his lien, for he would be particepscriminis, and would not be allowed to profit by his own fraud. Therefore, if the code provisions apply to the transaction by which a husband induces his wife to convey her property as security for his debt, they necessarily apply to the transaction in which the creditor receives the security if he has notice, either actual or constructive, of any fraud or imposition practiced by the husband in procuring the wife's consent.
If these views are sound, and they seem to me to be indisputable, the opinion of the court fails to meet the propositions so ably and fully presented in the brief of appellant — for it is not held that the code provisions do not apply to the transaction between the husband and wife, and the contention of appellant that although Hellman, who conducted the business in behalf of the plaintiff, had no actual notice of the means by which Shorb induced his wife to encumber her estate, he did have constructive notice, is practically ignored.
It is indeed said in the opinion of the court that the consent of Mrs. Shorb to the transaction of October, 1887, was not procured by undue influence, but the decision is not placed on that ground, and I hardly think this court would commit itself to the proposition that undue influence has no part in such a transaction as is found by the superior court and disclosed by the evidence in this record. A husband, entirely without means to meet his exising obligations, and pressed for payment, informs his creditor that his wife will become his surety if the credit is extended. Papers are all prepared in pursuance of this understanding, a joint note and a trust deed of her separate property. She is then brought into the presence of the creditor and shown the papers she is expected to sign. To her husband she expresses her unwillingness to comply and her alarm at the risk she is asked to assume. He tells her in effect to make her choice between two alternatives, — that she must take the risk, or he will not live to endure the disgrace involved in her refusal. Compelled to an immediate decision, *Page 697 without any opportunity for reflection, and in the first access of feeling occasioned by so startling a threat, she signs and acknowledges the papers. Would any one contend that if Mr. Hellman had been actually aware of these circumstances he could have enforced a security so obtained? If such contention were made, I think this court would hesitate to sustain it.
But the superior court finds, and the finding is sustained by the evidence, that Hellman had no actual knowledge of this colloquy between the husband and wife, which was conducted in a low tone of voice and out of his hearing, and the only question is whether he can be charged with constructive notice of the kind of undue influence actually exerted.
As to this point — and it is in my opinion the most important point in the case — the position of appellant is, that every transaction between husband and wife by which the former obtains any advantage is prima facie fraudulent, because by the express terms of the statute it is presumed that the advantage was obtained without consideration and by the exercise of undue influence, and therefore the transaction between the spouses being prima facie invalid, — made so by law, of which no man can plead ignorance, — every person dealing with the husband in respect to the thing obtained from the wife is not only charged with notice of any fraud that was actually practiced, but is subjected to the burden of proving that in fact the transaction was fair and free from any imputaion of undue influence. These propositions are of vital importance to the case, and must be disposed of in order to decide it.
In reaching my own conclusion that the judgment and order of the superior court should be affirmed, I assume that the provisions of section 158 and 2235 of the Civil Code do apply to the act of a wife in mortgaging her separate estate to secure her husband's debts, and that the creditor does take the security with constructive notice that the wife's consent may have been obtained by that species of undue influence to which the relation of husband and wife opens the door, but that there is no constructive notice of other kinds of undue influence. The relation of husband and wife is one of mutual confidence, but under our law the husband does not occupy a position of superiority or authority. The kind, and the only kind, of undue *Page 698 influence which either is presumed to exercise over the other consists in the abuse of the confidence naturally reposed by one in the other, — that is to say, in concealment or misrepresentation in respect to the matters inducing the particular transaction or its consequences and effects. Under our law a wife is permitted to become her husband's surety, and he is permitted to solicit the favor. When she accedes to his request it may be presumed as against the husband and the creditor that she was not fully advised as to the risk she was taking — that there was misrepresentation or concealment of facts, as to which she was entitled to be advised, or as to the law measuring her liability, but there is no presumption of duress of any kind, or of undue influence exerted by means of threats of injury not amounting to duress.
In this case the undue influence by which Mrs. Shorb was induced to become surety on the $51,000 note was of a kind which Hellman had no reason to suspect, and with notice of which he is not charged, and the only undue influence which could be presumed is disproved by the evidence, which conclusively shows that Mrs. Shorb was fully advised of every circumstance affecting the risk, which, as it then appeared, she was willing to incur.
I have in this discsusion singled out the transaction of October, 1887, because it, more nearly than any other of the numerous dealings finally consummated in the note and mortgage in suit, sustains the defense upon which appellant relied, and this renders unnecesssary any special reference to prior or subsequent transactions. *Page 699