This action was brought against Georgianna B.S. Terry and Sarah L. Scofield to recover for a deficiency of principal and interest upon the sale of lands in Ohio under mortgage foreclosure, half of which mortgage had been assumed by the defendants as grantees in a deed of an undivided one-half of the mortgaged premises.
Mrs. Scofield did not defend and judgment was taken against her by default, and against Mrs. Terry, the appellant, after trial.
The counsel for the appellant insists there are legal errors disclosed by the record that call for a reversal of the judgment.
It is first urged that one of the plaintiffs, Anna B. Fuller, suing as executrix under her husband's will, is acting by virtue of letters testamentary issued by a probate court in the state of Ohio and that she is without authority to bring suit in this state in the absence of ancillary letters issued to her here. *Page 131
This objection was taken originally by demurrer to the complaint on the ground that the plaintiffs had no legal capacity to sue, and it was stipulated at the opening of the trial that the demurrer was waived. This stipulation is a final waiver of the objection.
It is next objected that the deed recorded in the state of Ohio, and read in evidence in the absence of the original, was not duly proved under section 947 of the Code of Civil Procedure.
The recorder of Lucas county, Ohio, certifies under his seal of office the instrument to be a true, perfect and complete copy of a certain deed recorded in that county, the record of which is in his custody and control as such county recorder.
The presiding judge of the Court of Common Pleas of Lucas county certifies to the official character of the recorder and to the genuineness of his signature, under the seal of the court.
The clerk of that county certifies to the official character of the presiding judge, that he had been duly elected, and that he was, at the time he signed his certificate, duly qualified, commissioned and acting; this is also under the seal of the court.
It is unnecessary to go further in proving the regularity of the procedure in the state of Ohio as to the recording of this deed.
It is insisted further that, under section 947 of the Code of Civil Procedure, this certified copy of the deed as recorded was only to be read in evidence if the original could not be produced. This criticism would have force if the record contained no evidence tending to show that the original could not be produced.
Terry and wife denied having the deed in their custody, and upon the evidence generally it appears plaintiffs could not produce it. The exemplification of the record of the conveyance from the state of Ohio was properly admitted in evidence.
The next two points presented by the appellant may be conveniently treated together. It is urged that there is no proof of *Page 132 delivery to, and acceptance by, the defendants of the deed of the mortgaged premises. Also that there is no evidence showing that the defendant Terry ratified or confirmed the alleged deed, or had any notice of the assumption clause therein contained, by which she agreed to pay one-half of the mortgage existing upon the premises.
Both Mrs. Terry and her husband took the stand at the trial of this action, and a careful reading of their evidence leads to the conclusion that it is, to say the least, very unsatisfactory. Mrs. Terry states, near the close of her evidence: "I leave it for you to judge whether my memory is faulty. I have made the statement to-day, I think my memory is faulty; I don't think you can depend upon me."
Mr. Terry's testimony was exceedingly contradictory, and may have satisfied the trial court that his memory was very unreliable and his evidence of little value.
Before examining more in detail the evidence of Mr. and Mrs. Terry, it may be well to consider the proofs bearing upon their knowledge of this deed and its contents in the order of introduction.
It appears that the husband of the defendant Scofield and Mr. Terry were in negotiation with one Howell for a one-half interest in these Ohio land. There was some talk of natural gas and oil on the premises.
The result was that Scofield went to Mrs. Terry's house by appointment, and at that time there was executed an agreement, which stated that Mrs. Terry and Mrs. Scofield had purchased from Cornelius C. Howell a one-half interest in the premises in question. This memorandum was signed by Mrs. Terry personally and by Mrs. Scofield per Charles F. Scofield, attorney.
It will be observed that this memorandum recites that the purchase had been made.
It appears that Mrs. Terry was served with the papers in the Ohio foreclosure suit in the state of New Jersey. Service was made by a young lawyer named Brown. He testified that he served the papers on her, and she at the time said *Page 133 there was no use of suing Mr. Terry because he did this business for her. She said she was perfectly acquainted with the facts.
While Mrs. Terry denies that she made any such statement to Brown, the trial judge evidently believed that she did, on conflicting evidence.
A lawyer from Toledo, Ohio, named Fuller, was placed on the stand. He states that he drew the deed of the mortgaged premises from Howell and wife to the two defendants, and that Terry and Howell were present in his office at the time and gave directions as to its preparation; that Terry and Howell drove out to the property during the day and came back later and got the deed; he says that after the deed was finished, he read it over to Terry and Howell and then delivered it to them.
While Terry swears that he never had the deed in his possession and has no knowledge of its being recorded, he admits he was in Fuller's office at Toledo once and met Scofield and Howell; he also admits that on that occasion he talked with Howell about the mortgage, and swears: "I told him I did not like the question about the mortgage. I told him that I was afraid about the mortgage." Mrs. Terry knew about the proposed purchase of these premises.
Terry took Mrs. Terry with him when this purchase was talked over with Howell. Terry swears that he "told her when the papers were drawn, they would be drawn in her name to protect her for what she had advanced."
At this point in his testimony the witness swears that he did not tell his wife that papers had been drawn, but earlier in his examination he testified that as soon as he returned home he supposed he told his wife what had been done; that was his best recollection.
Mrs. Terry paid on account of the first payment on this land $500. Terry swears that he "told her what it was for, to make payment on that land up there, the land I was going to buy; I had talked with her about it a day or two before that." *Page 134
It is not profitable to quote from the record all the fragments of testimony that must have had more or less weight with the court in directing a verdict for the plaintiffs.
There is, however, a further fact that should be referred to in this connection as it may have been persuasive, if not conclusive, on both points of delivery and ratification. The deed from Howell to the defendant and Mrs. Scofield was dated April 18th, 1888, and on the 28th day of April, 1888, Mrs. Terry and Mrs. Scofield, in an instrument somewhat inartificially drawn, entered into an agreement whereby Mrs. Terry obligated herself to make the first payment of $1,302.50 on the purchase of the property in question, which is referred to as "fully described in the deed to the above parties of the first and second parts from said Cornelius Howell."
We have here the defendant recognizing the fact over her signature under seal that the purchase of these premises was in the names of Mrs. Scofield and herself, and making specific reference to the deed.
It is difficult to have more satisfactory evidence of the defendant's knowledge of the deed, short of proof that it was seen in her actual custody. Mrs. Terry swears she read this agreement before signing it, no lawyer being present.
In Coolidge v. Smith (129 Mass. 554) it appeared that a deed containing a recital that the land therein described was subject to a mortgage "which the grantee assumes and agrees to pay" was executed to a woman as grantee without her knowledge or authority, by the direction of her husband, and was by him recorded. She never saw the deed and knew nothing of its contents until after the land was sold by the mortgagee, when she repudiated the deed. Soon after the deed was recorded, she knew that the land had been conveyed to her, and claimed to be the owner of it. The court held that these facts would warrant a finding that she had assented to the purchase, and a ruling that she was bound by the recital in the deed.
It is true there was evidence tending to show that she knew of the mortgage. The decision rests, however, upon ratification. *Page 135
In the case at bar there is abundant evidence tending to show that defendant ratified her husband's purchase of the land in her name, and had full knowledge of the deed.
This being so, it cures all defects in Terry's express or implied authority to act for his wife in the premises, if any existed.
If Terry was to have executed a deed under seal in his wife's name, then the authority should have been conferred by instrument also under seal; but authority to purchase or sell real estate or other property for a principal can be conferred by parol. (Worrall v. Munn, 5 N.Y. 229; Champlin v. Parish, 11 Paige, 405; Lawrence v. Taylor, 5 Hill, 107; McWhorter v.McMahan, 10 Paige, 386; Newton v. Bronson, 13 N.Y. 587;Reeves v. Kelby, 30 Mich. 132; Mechem on Agency, §§ 84, 89, 93; Story on Agency, § 47.)
We have under the directed verdict all facts found in favor of plaintiffs, as, at the close of the evidence, the counsel for each party asked that the court direct a verdict, and neither requested to submit any question to the jury. (Koehler v.Adler, 78 N.Y. 287; Kirtz v. Peck, 113 N.Y. 222.)
There are some additional points in the appellant's brief which we have duly considered.
The judgment and order appealed from should be affirmed, with costs.
PARKER, Ch. J., GRAY, HAIGHT and MARTIN, JJ., concur with O'BRIEN, J., for reversal; VANN, J., concurs with BARTLETT, J., for affirmance.
Judgment reversed and new trial granted, costs to abide the event. *Page 136