
    SARAH SLAUSON, Plaintiff and Respondent, v. HEZEKIAH WATKINS, Impleaded, &c., Defendant and Appellant.
    SPECIFIC PERFORMANCE,—MARRIED WOMAN.
    In this case the plaintiff, a married woman, owned certain real estate subject to a purchase money mortgage for $33,000, executed by her. She entered into a contract with defendant to sell and convey the said real estate,.and defendant covenanted and agreed to pay this mortgage as a part of the purchase money. Plaintiff executed the contract on her part by conveying the property to a third person, as requested by defendant, subject to the lien of the mortgage, but without any covenant of the grantee to pay said mortn-asre.
    
      The mortgage not being paid according to its terms, the mortgagee commences an action to foreclose the same, making plaintiff a party defendant, to answer for any deficiency on the sale.
    The plaintiff commences this action against defendant for the specific performance of his contract to pay said mortgage. Held., that said contract cannot be enforced specifically until it is established, with definiteness and certainty:
    1st. That there will be a deficiency on the sale of said real estate.
    2nd. The amount of that deficiency.
    
      Held, also, by Judge Sanford, that plaintiff cannot enforce this contract, because she has no interest in the matter, for as a married woman she executed the bond and mortgage, and under Cashman ®. Henry (see page 193, post), she incurred no personal liability thereby, and did not charge in equity her separate estate other than the mortgaged premises, and, having conveyed away all interest in the mortgaged premises, she has no interest entitled to protection from the defendant.
    
    Before Curtis, Ch. J., and Sanford, J.
    
      Decided May 6, 1878.
    Appeal by the defendant Hezekiah Watkins from a judgment directing that the agreement set forth in the complaint be specifically performed and awarding other relief to the plaintiff.
    On the first day of October, 1872, the co-defendant, B. L. Ludington, sold and conveyed to the plaintiff a house and lot on Lexington avenue, for $30,000. The plaintiff, Mrs. Slauson, on the same day, executed and delivered to him (Ludington) a purchase money mortgage for $22,000 ; $5,000 payable October 1, 1873, and $17,000 October 1, 1877, together with her bond for the same amount, and payable in like manner. A few months afterwards, and about April 17, 1873, the plaintiff, by her husband, Charles S. Slauson, made a verbal agreement with the defendant Watkins, to sell to him said house and lot with the furniture, for $35,000. On April 18, 1873, the plaintiff delivered to Elizabeth F. Watkins a full covenant warranty deed of said house and lot. The deed from the plaintiff to Mrs. Watkins, was drawn by a Mr. Shear, who was then in the law office of the defendant, Watkins, and, by the direction of the latter, the name of Elizabeth F. Watkins, the wife of the defendant, Hezekial], Watkins, was inserted in the deed as the grantee of the premises.
    The premises were conveyed to Mrs. Watkins, subject to the mortgage of $22,000, but there was no covenant in the deed to pay the same.
    On the same day that the deed was executed and delivered by the plaintiff to Mrs. Watkins the defendant, Hezekiah Watkins, executed and delivered to the plaintiff a written agreement setting forth that he had purchased the house and lot and furniture, for the sum of $35,500, payable $22,000 thereof by his assumption of the payment of the mortgage of $22,000 given by the plaintiff to B. L. Ludington.
    The defendant, Watkins, took possession of the house on May 3 or 5, 1873, and has been in possession ever since.
    The installment upon the mortgage which became due October 1, 1873, not having been paid, Mr. Ludington commenced an action in the superior court to foreclose the mortgage, and thereupon Ludington and Watkins entered into an agreement, by which Watkins agreed to pay $2,000 thereon, and the payment of the balance of the installment ($3,000) was extended to April 1, 1876.
    On May 16, 1876, the $3,000 last mentioned not having been paid, and the defendant, Watkins, having made default in the payment of the interest which became due April 1,1876, Mr. Ludington commenced an action in the supreme court to foreclose the mortgage, making the plaintiff a defendant, and demanding judgment against her for any deficiency.
    
      On July 7,1876, the plaintiff commenced this action for a specific performance of the agreement made by Watkins, by which he assumed the payment of the mortgage.
    Ludington was made a party defendant, and the prayer of the complaint was that the defendant, Watkins, might be adjudged to pay the mortgage to his co-defendant, and that thereupon Ludington might be adjudged to surrender up the bond and mortgage to be canceled.
    The court, after finding substantially the foregoing facts, found, as matter of law, that the defendant Watkins should pay to his co-defendant the sum of $4,341.80, being the balance of the installment then due on the mortgage, with the interest on $20,000 to that date.
    The court further decreed that if the defendant Watkins should elect to pay the balance then unpaid, but not yet due, upon the mortgage (to wit: $17,000), then the defendant Ludington should assign the bond and mortgage to him, and that he might, at his election, proceed to foreclose the mortgage in the action then pending in the supreme court. Judgment was entered accordingly.
    
      Oliver W. West, for appellant.
    
      George W. Lord, for respondent.
    
      
       Cashman v. Henry has been reversed by the court of appeals. See post, p. 100.
    
   By the Coubt.—Cubtis, Ch. J.

The agreement of the defendant, Hezekiah Watkins, was to pay $22,000, being a part of the consideration for the sale of a house and furniture, bought by him from the plaintiff, “by the assumption of a certain mortgage now on said premises to B. L. Ludington, together with interest from April 1, 1873.” The plaintiff fulfilled the agreement on her part, conveying the property subject to this mortgage to the defendant’s wife instead of to him, but at his request. There was no covenant on the part of the grantee in the deed to assume the payment of this mortgage. This omission did not impair the obligation entered into by the defendant, her husband, to assume, that is, to take upon himself, such payment. He could fulfill this obligation, as far as the plaintiff was concerned, by permitting the property thus conveyed at his request, or its proceeds, if sold under foreclosure, to be applied to its discharge, and if they were insufficient, by paying the deficiency to the holder of the mortgage; or he could pay in cash the principal and interest of the sum secured by the mortgage as it became due.

A part of the mortgage, $5,000, became due October 1, 1873, and the balance, $17,000, became due October 1, 1877, subsequent to the commencement of this suit. The defendant Watkins paid $2,000 of the $5,000 when it became due, and obtained from the defendant, B. L. Ludington, the mortgagee, an extension of the time of payment of the remaining $3,000, until April 1, 1876. Upon the failure of the defendant Watkins to pay this $3,000, Ludington commenced an action in the supreme court to foreclose the mortgage. Subsequently to this, and about July 7, 1876, the plaintiff commenced the present suit. There is no claim made by the plaintiff, nor does it appear, from the proofs, that she is aggrieved, or sustains loss, by any delay, on the part of Ludington, to enforce the payment of the mortgage in question.

The procurement of the extension of the payment of $3,000, by the defendant Watkins, from Ludington, does not operate to discharge the defendant Watkins from his liability under the agreement entered into by him with the plaintiff. The protection afforded to her by this agreement cannot be defeated by an act to which she is a stranger.

The difficulty with the plaintiff’s case is this. There is nothing that establishes conclusively that there will be any deficiency resulting from a foreclosure and sale of the mortgaged premises. If the proceeds of such a sale are sufficient to pay the remaining unpaid part of the mortgage debt, the defendant Watkins’ obligation to the plaintiff in that behalf ceases. A foreclosure suit was in progress when the present suit was instituted. There is no delay in such suit shown that prejudiced the plaintiff. If in this foreclosure suit, there is a deficiency, then her remedy and the extent of it are clearly defined.

The judgment appealed from is based upon the finding, “ that there will be on the foreclosure sale a deficiency of several thousand dollars for which the plaintiff will be liable.” The remedy sought by the plaintiff in this action is, in effect, an attempt to obtain protection from her personal liability for such a probable deficiency. The evidence fails to establish with definiteness or certainty that there will be a deficiency, still less what will be its amount. It is apparent, that it depends upon contingencies affecting the prices of property, that cannot be determined in advance. In the very nature of things, these prices are ever fluctuating, in accordance with the laws of demand and supply, and when in addition, the legal tender qualities of various mediums of payments are subject to unforeseen changes by legislation, it is obvious that neither witnesses nor courts can with reasonable certainty divine what prices property will bring at future foreclosure sales, and also that justice cannot be administered upon the basis of such foresight.

This leads to the conclusion, that from what appears in the case, the plaintiff should have waited until her own liability, if any, was established by the result of the pending foreclosure suit, before resorting to her remedy.

The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event of the suit.

Sanfobd, J.

I concur with the chief justice in the opinion that the enforcement of a right of action in favor of the plaintiff, and against the defendant Watkins, if any such there be, must be postponed until it shall have been definitely ascertained whether or not the proceeds of a sale under decree of foreclosure will suffice to satisfy the mortgage. But I am unable to perceive any ground, legal or equitable, upon which the plaintiff can insist upon the enforcement of a claim against Watkins, under any circumstances. She has no interest in the matter. If entitled to relief, at all, it must be by way of indemnity or protection against her own personal liability as obligor or mortgagor. Having conveyed the mortgaged premises, and being no longer interested therein, it is only as obligor that she can be charged. But it appears from the evidence and from the findings of fact, that when she executed the bond and mortgage, she was under the disabilities of coverture, being then the wife of her co-plaintiff, Charles S. Slauson, deceased since the commencement of the action. We.hold in Cashman v. Henry (decided concurrently with this case), that a married woman incurs no personal liability, and does not charge, in equity, her separate estate, other than the mortgaged premises, by assuming payment of a mortgage subject to which lands are conveyed to her, although the amount of such mortgage be allowed to her, as part of the purchase money, expressed to be paid as the consideration of such conveyance. The same principle is equally applicable to a bond and mortgage executed by a married woman for or on account of the purchase money of lands conveyed to her. In both cases, the common law disability of coverture renders her incaliable of contracting or of incurring liability, except in so far as she is expressly authorized by statute. Her bond is void. She charges her separate estate to the extent expressed in the mortgage, but neither the bond nor the mortgage creates any lien upon her separate estate, otherwise than as therein expressed, and neither bond nor mortgage subjects her to personal liability, as if she were a feme sole. The remedies of her vendor and mortgagee are therefore restricted, as against her, to the particular premises mortgaged, and to the enforcement of his lien thereon.

Under this view of the case, the plaintiff is under no personal liability for, and has no interest in the payment of the mortgage. She requires neither indemnity nor protection; and her interference on behalf of the mortgagee is wholly gratuitous.

The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event.  