CAMDEN v. VAIL et al., 23 Cal. 633

Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring. This is an action to foreclose a mortgage, which the complaint avers was given by the' defendant YaH “ in the name and under the signature and seal ” of his wife. It is averred that YaH purchased the mortgaged property, of one Robinson, taking the conveyance in the name of his wife, and that the mortgage was given to secure the payment of a portion of the purchase money.

The plaintiff claims by assignment from Robinson, and alleges that the property has been conveyed by Yail and wife to the defendant Crosby, but that the conveyance was fraudulent and without consideration. The only answer in the case is that of Yail, which denies any connection on his part with the purchase or the mortgage, and avers that the purchase was made and the mortgage given by his wife on her own account. Crosby, by failing to answer admits the matters charged, so far as he is concerned, and the facts are found by the Court in accordance with the aUegations of the complaint.

The first point made is, that Mrs. YaH is a necessary party; but in the view we take of the case this point is not material, as we are of opinion that the mortgage cannot be enforced. It is -unnecessary to go into the question of the effect of the conveyance from Robinson; for whatever its effect may have been, it is evident that the mortgage is inoperative. So far as Mrs. Vail is concerned, it is admitted that she had no power to execute it in her own behalf, and it is clear that its execution cannot be regarded as the act of her husband.

The averment that it was made by him states that it was made in her name and that the signature and seal are hers, and the mortgage purports throughout to be her act and deed. It is not pretended that he signed it, using her name in place of his own, and the certificate of acknowledgment shows that it was in fact signed by her. To say that he made it, is to say that which cannot by any possibility be so. The right of the plaintiff to enforce a vendor’s lien is settled by the case of Baum v. Grigsby (21 Cal. 172). Judgment reversed and cause remanded. The above case was decided at the April Term, 1863, before Mr.

Justice Ckockeb went on to the bench. A rehearing was granted, and the decision on the rehearing was rendered by the new Court, after the amendments to the Constitution went into effect, at the January Term, 1864. The opinion on the rehearing does not conflict with the law as here laid down, and will be published in the 24th volume of Cal. Reports.—Rep.