The plaintiffs recovered a judgment against the defendant, a married woman, for the debt of a third party, which, it was claimed, the defendant had assumed and agreed to pay. The original debt was due to the plaintiffs from one Howell, who, on the 24th of August, 1887, gave a mortgage to secure it on certain lands in Ohio, where the debt was created and the parties resided. It is alleged in the complaint that subsequently, and on the 18th day of April, 1888, the defendants purchased a portion of the land covered by the mortgage, and assumed and agreed to pay the same to the extent of $3,750. The allegation is denied by the answer. It appears that the plaintiffs foreclosed the mortgage in the proper court in Ohio, and upon the sale of the property there was a deficiency, which the plaintiffs sued for and recovered of the defendants in this action. *Page 126
It is not claimed that the defendant ever had any actual transaction with the plaintiffs, or that she ever made any agreement of any kind directly with them for the payment of any part of their debt against Howell. What is claimed is that Howell, in conveying a part of the land covered by the mortgage to the defendant, inserted in the deed a clause binding her to assume and pay the mortgage, and that this promise inured to the benefit of the plaintiffs. Her promise, therefore, to pay this debt rests entirely upon her acceptance of the deed of the Ohio lands. There is no proof in the record that she ever saw the deed, or knew anything of its contents. On the contrary, she testified at the trial that she had never seen it, or knew from any source what its contents were.
The burden of proving a valid agreement by the defendant to pay the debt of another was clearly upon the plaintiffs. Without such proof they were not entitled to recover. The only proof that they produced was the exemplification of the record of the deed from the office of the recorder of deeds of Lucas county, Ohio. This, at most, proved only that at some time the deed had been deposited in that office by some one. It does not even appear when it came to that office. For aught we can know from the record it may have been left there after the commencement of this action. The record thus produced proves a grant of certain land therein described to the defendant, and it contains a clause assuming and agreeing to pay the mortgage thereon. But this clause does not prove a personal promise or obligation on the part of the defendant to pay the debt of a third party, in the absence of proof that she actually accepted the deed with knowledge of the assumption clause, or at least under such circumstances that she was bound to know its purport and legal effect. A clause of that character in such an instrument is, properly speaking, no part of the grant. It is a collateral undertaking, personal in its nature, not relating to the land. Like all other personal contracts it must be shown by the paper itself, or otherwise, that there was a meeting of minds and mutual assent of the parties.
In a unilateral instrument the acceptance of it by the party *Page 127 to be bound, or the retention of it without objection, would be evidence of assent to its terms; but when a deed of land contains a provision binding the grantee to become personally responsible for the payment of a pre-existing mortgage, the holder of the mortgage, claiming the benefit of a promise made, not to him, but to a third party, must prove something more than the mere fact that the deed was deposited in the clerk's office at some time by some one. There may be constructive delivery of a deed sufficient to vest title in the grantee, but it does not follow that such a delivery is sufficient to create a personal obligation on his part to pay a mortgage which is a lien on the land. In order to make the instrument effective for that purpose, enough must be shown to at least raise a presumption that it was accepted by the grantee with knowledge of the fact that it was not only a grant of the land, but contained a collateral promise on his part to pay a sum of money to some third party.
The record in this case contains no such proof. It was shown that the defendant's husband was dealing in land, and enough was shown to warrant a finding that he negotiated for the purchase of the land in question and took the deed in her name, she furnishing the money to make the payments. But there is no proof that he was authorized to bind his wife personally for the payment of any of the liens existing on the land. What the scope and extent of his authority was, the record does not show. Was it a general authority to buy land, or a specific authority to buy the land in question? The proof gives no answer to these questions.
It seems that both defendants were married women, and the plaintiffs at the trial gave in evidence a paper signed by the defendants and dated April 28th, 1881, ten days after the date of the deed, in which it was recited that they had purchased the land in question. Then follows in the body of the paper an agreement between themselves, whereby Mrs. Terry agrees to loan and advance to the other defendant the share of the purchase price to be paid by the latter, with provisions for the repayment of the loan. All this paper proves is, that *Page 128 the defendants knew that the land was purchased or was about to be purchased in their names, but it does not show that they had ever seen the deed, or knew that it contained a provision binding them personally to pay the mortgage. The defendant's husband was present when the deed was drawn, but he testifies substantially that he knew nothing of the assumption clause, and never assented to or authorized it.
The most favorable view that it is possible to take of this case for the plaintiffs, is that the defendant's husband was speculating with her money in what were supposed to be oil lands in Ohio, and that he took the deed in her name. If it be assumed that he knew of the assumption clause, although he testified that he did not, and that the deed was never delivered to him, the question still remains with respect to his power to bind his wife personally to pay the mortgage. She is sued upon a personal covenant in a sealed instrument, to pay the debt of Howell to the plaintiffs. She never signed the instrument; never actually accepted it, or even saw it. She never did anything to make the covenant binding upon her personally by ratification. She could not ratify the unauthorized act of her husband without first knowing what the act was, and its nature and legal effect. It cannot be implied from any facts in this case that the husband had any power to bind his wife personally by the clause in the deed, and there is no proof that she in any way ratified his act. It is quite true that if the defendant accepted the deed with knowledge of the assumption clause, she made the debt of a third party her own, and is bound to pay it. But it was an essential part of the plaintiffs' case to prove that the defendant had knowledge of this collateral covenant in the deed, or in some way assented to it. The recording of the deed, at best, was only presumptive evidence of a delivery, and the testimony of the defendant that she never knew of such a deed, or intended to enter into any obligation to assume the mortgage, removes the presumption, and the case is left without any evidence that she agreed to pay the mortgage, or ratified the clause in the deed. (Albany City Savings Institution v. Burdick, *Page 129 87 N.Y. 40; Kilmer v. Smith, 77 N.Y. 226; Dey Ermand v.Chamberlin, 88 N.Y. 658; Townsend v. Rackham, 143 N.Y. 516;Gifford v. Corrigan, 117 N.Y. 257.) There could be no ratification by the defendant until she had knowledge of the clause in the deed and of its legal effect as a promise on her part. (Trustees, etc., v. Bowman, 136 N.Y. 521.)
Nor is she bound by any knowledge that her husband may have had with respect to the covenant, since there is no proof of authority in him to create personal obligations against his wife. Assuming that he had authority of some kind to buy the land with her money, that would not comprehend the power to bind her for the payment of the claims of others upon it by his mere knowledge of or assent to the assumption clause in the deed. This, I think, would be contrary to all the analogies of the law of principal and agent. The agent to sell goods cannot bind his principal by a collateral warranty, unless he had express authority, or authority be implied from the usual custom in the sale of the particular goods. (Wait v. Borne, 123 N.Y. 592.)
The plaintiffs are seeking to make the defendant liable to them by reason of a transaction with which, so far as appears, they had nothing whatever to do. They are not, therefore, in a position to claim anything from the deed, to which they were not parties, in consequence of any apparent authority in the husband to accept it for his wife. The plaintiffs can take nothing from appearances, since they were not affected by them, and could not have been. They must show that the defendant agreed to pay their debt through some act of her own, or that of her agent duly authorized. (Edwards v. Dooley, 120 N.Y. 540.) The most that they have shown is that the husband was a mere agent to purchase the land, and that would not by any implication authorize him to pledge the credit of his principal for the satisfaction of a prior lien. (Bank of Indiana v. Bugbee, 3 Keyes, 461;Martin v. Peters, 4 Robt. 434.)
The plaintiffs had no transaction whatever with the husband or agent. They are claiming the benefit of a clause in a deed *Page 130 between other parties. This they may do, but they must prove all the facts upon which the legal liability of the defendant to them rests. The rule that sometimes prevails in the law of principal and agent, and which attributes to the agent, not only the authority that he may actually have, but that which he appears to have, has no application to this case, since the plaintiffs did not act upon or part with anything on the faith of any apparent authority. Their action or their rights were in no way affected by the conduct of the defendant's husband. Consequently, in the absence of proof that she made the agreement alleged in the complaint, or that her husband made it for her, with her authority, or that she, with knowledge of all the facts, ratified it, the cause of action stated was not made out. There is no such proof in the record. At most, all that was shown was a state of facts which might bind the husband, in case he had been the grantee named in the deed.
I think, therefore, that the decision of the learned trial judge directing a verdict for the plaintiffs was error, for which the judgment should be reversed and a new trial granted, costs to abide the event.