Farmers & Merchants' Bank v. De Shorb

Action to foreclose a mortgage. Plaintiff has judgment, from which and from the order denying a new trial this appeal is taken. The court found, as to the note and mortgage, that on March 24, 1896, J. de Barth Shorb and appellant, who were husband and wife, executed their joint and several promissory note to plaintiff for the sum of $164,-000, and at the same time jointly executed the mortgage upon which this action is brought, for the purpose of securing the same; that the note and mortgage were executed freely and voluntarily by appellant, and for a valuable consideration; that appellant did not execute the note as surety for her husband, but it was intended to be, and was, the joint and several note of the said J. de Barth Shorb and appellant; and the same has not been paid nor any part thereof. The above findings support the judgment, and the evidence supports the findings.

The main contention of appellant is, that she signed the note and mortgage as surety for her husband, and by reason of undue influence, and that plaintiff took the note and mortgage with notice that she was such surety, and that the presumption as to undue influence gave notice to and binds the plaintiff.…

I concur in the judgment of affirmance, but I am not satisfied with that part of the opinion of the court—the concluding portion—which deals with appellant’s contention as to the application of sections 158 and 2235 of the Civil Code to the various transactions between these parties. It is no answer to appellant’s position' to say that these were transactions between the Shorbs on one side and the plaintiff on the other, and to argue that therefore they did not involve transactions between the husband and wife, for the argument is on its face a non sequitur. One transaction may, and very frequently does, not only involve, but essentially depend upon, another, and no better illustration of this proposition could be found than in the circumstances attending the transaction of October, 1887, when the Shorbs executed and delivered their joint note for $51,000, secured by appellant’s deed conveying her separate property, in satisfaction or renewal of her husband’s obligations. The making and delivery of the note and deed was undoubtedly a transaction between them and the plaintiff, but none the less it involved, and was vitally dependent upon, the preliminary transaction between the…