(Download) "Drury v. Foster" by United States Supreme Court # Book PDF Kindle ePub Free
eBook details
- Title: Drury v. Foster
- Author : United States Supreme Court
- Release Date : January 01, 1864
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
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Mr. Peckham for Drury, the mortgagee: All will admit that it is not easy to conceive of a case addressing itself more to a sense of equity. Drury, without a circumstance to excite suspicion, and relying upon a mortgage regular upon its face, advanced a large sum in perfect good faith. He supposed, too, as was natural, that the mortgagors were acting in equal good faith. Mrs. Foster deliberately, and with understanding, put it into the power of her husband to obtain the loan. Will she be permitted, at this late day, in conjunction with her husband, to disavow her acts, and thus, in effect, defraud an innocent third party whom she has been chiefly instrumental in bringing into his present position? Even if Mrs. Foster were entirely innocent in the premises, and was the victim of the fraud of her husband, yet either she or the plaintiff must suffer loss in the present case; and no principle is better settled than that where loss must fall upon one of two innocent parties, it must be borne by that one who is most in fault. There is no reason for exempting the wife from the operation of this rule. On the contrary, in transactions between the husband and wife and third parties, there is the strongest reason for applying the principle. It would be against public policy, and expose transactions relative to real estate to hazard, to allow a married woman to screen herself from the consequences of her own acts under the circumstances of the present case. Such a doctrine would subordinate all other interests to those of married women. Viewed on legal principles, the conclusion is to the same effect. It is of no pertinence to cite, in this day and this country, 'technical dogmas,' as Grier, J., calls them,1 out of Shepherd's Touchstone, or Perkins. These old books may, indeed, declare, 'that if a man seal and deliver an empty piece of paper or parchment, albeit he do therein withal give commandment that an obligation or other matter shall be written in it, and this be done accordingly, yet this is no good deed.'2 But such doctrines have been exploded, even in England, these two hundred years. Certainly the contrary, as respected a bond, was adjudged in Zouch v. Claye, 23 and 24 Charles II, in the days of Norman French and of blank-letter law. Levinz thus reports the case:3