I cannot concur in the affirmance of this judgment.
Aside from what may be claimed from the recital of an indebtedness in the mortgage, no evidence was given tending to prove that Mrs. Richardson was indebted to the testator; that she intended to take upon herself absolutely and at all events the debt of her husband, or that she was accepted as a principal and not as a surety. There is a total failure of proof of any facts that would have the effect to shift the debt from the husband to the wife or merge it in the bond and mortgage.
The evidence plainly shows that Mrs. Richardson was not indebted to the testator, and that the only consideration for the bond -and *524mortgage was the debt of Asa B. Richardson, her husband. I do not see how it can be held that the delivery of the money by the testator to the husband to pay his note and save her stock from possible sacrifice "was a loan to the wife or on her bond and mortgage. It seems to me that the legal effect of this transaction was a payment of the note by the testator through Richardson as her agent. The court found that the note was the debt of the husband ; that the testator had pledged her stock to secure it; that the bank demanded a settlement and the testator gave to Richardson three drafts aggregating $6,000 with which to pay the note, and that he paid the note with the proceeds thereof and returned the stock to her. I think that the suretyship of the wife follows as a legal presumption from these facts, it appearing that the testator had knowledge by.-actual information that the debt was the debt of her husband and the property pledged for its payment belonged to his wife. It is well settled that where a wife joins with her husband in a mortgage of her land to secure his debt or the payment of money loaned to him, she is the surety of her husband. (Vartie v. Underwood, 18 Barb. 561; Smith v. Townsend, 25 N. Y. 479; Bank of Albion v. Burns, 46 id. 170.) This rule is not peculiar to the marital relation. “ If I mortgaged my farm to secure my friend’s bond, debt, and the creditor knows it is my farm, I become a surety for my friend, 'and the creditor is bound to respect that relationship. The law indulges him in no conjecture that I intend to make a gift to my friend, or that the debt was incurred in some way for the benefit of my property.” (Loomer v. Wheelwright, 3 Sandf. Ch. 148.)
That the money was not loaned on the bond and mortgage also appears from the fact that they were not executed or delivered until two days after the money was advanced by the testator. No other evidence was given than that which the bond and mortgage furnished, for the .purpose of showing when they were executed or delivered. They are dated the twenty-third day of October. From this evidence the presumption is that they were .executed and delivered on that day. It, however, appears that they were acknowledged the twenty-fifth day of October, and were executed and delivered in the presence of the notary who took the acknowledgment. The only reasonable inference that can be drawn from this *525evidence is that they were executed and delivered at the time they were acknowledged. In view of this fact it would he giving undue weight to the date of these instruments to permit it to decide the time of their execution or delivery. I think it is entirely clear that the bond and mortgage were only given to secure the debt of Richardson, which was released by the codicil of the will of the testator, and, therefore, the judgment should be reversed and a new trial granted, costs to abide the event.
Goodrich, P. J., concurred.
Judgment affirmed, with costs.