No. 1,892.

#### HIRAM SHARTZER, Appellant, *v.*HARRY LOVE and MARY LOVE, Respondents.

Dismissal op Appeal. — Death op one op the Respondents. — Where it appears that one of several respondents died before notice of appeal -was filed, a motion to dismiss the appeal as to him must be granted.

Husband and Wipe. — Contract by. — A woman is not personally liable on a contract signed by her husband and herself. It is the contract of the husband alone.

Mexican Grants. — Duty op Surveyor-General. — Responsibility pok Neglect to transmit Survey. — The Act of Congress, of July 1st, 1864, “to expedite the settlement of titles to lands in the State of California,” makes it the duty of the Surveyor-General to transmit the survey to the Land Department, and every act, from the confirmation of a survey to the issuing of the patent, is an official act, and where there is any neglect or unnecessary delay in issuing the patent the confirmee is not responsible for it.

Appeal from tbe District Court of tbe Third District, Santa Clara County.

Action to foreclose a mortgage made by tbe defendants Harry Loto and bis wife Mary, to secure a contract for tbe sum of fifteen hundred dollars," with interest, payable sixty days after tbe issuance of a patent by tbe Government of tbe United States for a tract of land claimed by tbe defendant Mary Love, as her separate property, it having been conveyed to her by her former husband, Narcisso Ben-' nett, to wbom it bad been originally granted by tbe Mexican Government. Tbe contract is signed by each of tbe defendants, and they jointly and severally promise to pay it.

Tbe complaint alleges tbafc, although tbe .patent to tbe lands bad not been issued at tbe date of tbe commencement of tbe action, yet, by tbe exercise of ordinary diligence, tbe defendants could, have obtained tbe patent; but that intending fraudulently to binder and delay tbe plaintiff in tbe collection of bis claim, defendants have failed to take any steps to procure tbe patent, and that it is wholly owing to tbe negligence and default of defendants that tbe patent has not been issued.

*94Tbe defendants separately demurred to tbe complaint. The. Court sustained tbe demurrers and rendered judgment in favor of defendants, and plaintiff appealed.

Tbe- other facts are stated in tbe opinion.

*Bodley & BanTcin,*for Appellant.

*First*— Tbe note was really payable, and tbe mortgage enforceable wben final confirmation was bad to tbe land described in tbe complaint. A final confirmation and approved survey are equivalent to a patent. All tbe rest is ministerial. *(Natoma W. & M. Go.*v. *Olarhin,*14 Cal. 545; *Mahoney*v. *Van Winlcle,*21 Id. 552; *Seale*v. *Ford,*29 Id. 104.)

Tbe law regards tbe substance and not tbe form of contracts, and in tbis case tbe contract was substantially to pay wben tbe title was secured — wben tbe patent could be obtained — as soon as tbey were in a condition to procure it. Tbe instant tbe final survey was approved, whatever was contingent in tbe contract became certain — the condition was fulfilled.

Tbe money was to be paid “sixty days after tbe patent shall have issued.” Tbis, in law, amounts to just tbe same as if tbe promise bad been in so many words “to pay the money sixty days after tbe patent, by tbe exercise of proper diligence and effort to obtain it, could have been obtained. *(IJwmas*v. *Floury,*26 N. Y. 26; *Mame*v. *Haight,*14 Barb. 81; *Olivers. Hive,*14 Ala. 590; *Whiles. Snell,*9 Pick. 16; *Blight*v. *Ashley,*1 Pet. C. O. It. 25; *Vermont M. Go.*v. *Mann,*36 Yt. 697; *Sowers*v. *Mann,*24 Texas, 275.)

*Second*— The doctrine of tbe case of *Speer*v. *Ward,*(20 Cal. 674), shows that Mary Love was not a surety, but a principal; tbe debt was tbe joint debt of both husband and wife, tbe money was loaned to both of them, tbe note was joint and several, and tbe mortgage was conditioned to pay tbe note according to its terms.

But it matters not whether she was surety or joint debtor. In either assumption her liability is tbe same. She encumbered her estate, according to tbe statute form, to secure tbe *95payment of tbe note according to its terms. Tbe terms of tbe note were wbat tbe law, wbicb always enters into and forms a part of every contract, declares, and that was to pay tbe money as soon as, by tbe exercise of due diligence, tbe patent could be obtained. *(Shaeffer*v. *McKinstry,*8 Watts, 258; *Gobi*v. *Harmon,*28 N. X 152; 30 Yt. 1 Shaw, 126.)

*Moore, Laine & Silent,*for Bespondents.

*First*— Counsel for appellant claims that tbe Court is to presume that tbe defendants entered into an implied covenant to use due and proper diligence to obtain tbe patent, and unless such diligence has been used, tbe demand is due, although tbe patent has not issued. It is not “so nominated in tbe bond;” until due no suit can' be maintained on tbe demand. (3 Cal. 262; 10 Id. 89; 18 Id. 380; 7 Johns. N. Y. 36.)

*Second*— The instrument constituting tbe foundation of this action is, as to Mary Love, a nullity. She has no power to make such an instrument. It is tbe instrument and contract of tbe husband alone, and has no binding effect on tbe wife. (25 Cal. 367; 29 Id. 120; 31 Id. 478.) If a nullity as to her and of no binding force upon her, its recitals cannot be invoked against her; she is not estopped by them.

It follows then, as a matter of law, that Mrs. Love is only a surety for tbe debt of her husband, and as such has a right to stand on tbe precise stipulation of tbe contract she assures; they cannot be enlarged by implication. (9 Wheat. 702; 10 Cal.'' 392; 20 Id. 659.)

*Third*— Tbe statute in 1 Brigbtly’s Digest (p. 113, §46), wbicb permitted a party to apply for and file with tbe Commissioner of tbe General Land Office tbe survey and its confirmation, was repealed by tbe Act of July 1st, 1864, of wbicb Section 1 made it tbe duty of tbe officers of tbe Government to issue tbe patent after approved survey, and Section 2 makes that law applicable to all private land claims that bad not at that time been approved.

*96Erodes, C. J.,

delivered tbe opinion of tbe Court:

It is shown by tbe affidavits filed in tbis Court, tbat Harry Love died before tbe notice of appeal was filed. Tbe motion to dismiss tbe appeal as to bim must be granted. *(Judson*v. *Love,*35 Cal. 463).

At tbe time wben tbe contract was made, upon wbicb tbe action is brought, Mary Love was tbe wife of Harry Love, and therefore, she is not personally liable on tbe contract, although it was signed by her; but it is tbe contract of Harry Love alone.

Tbe dismissal of tbe appeal as to Harry Love left tbe judgment in bis favor in full force. Tbe matter determined by tbe judgment, was tbat tbe facts stated in tbe complaint did not show tbat tbe money mentioned in tbe contract bad become due, wben tbe action was commenced. It is very apparent tbat an action cannot be maintained against Mary Love, to foreclose tbe mortgage, until tbe money mentioned in contract has become due; but tbat matter cannot be taken into consideration on tbe appeal as to her, for tbe reason tbat tbe questions in tbe case arise upon tbe demurrer to tbe complaint. Tbe question of tbe sufficiency of tbe complaint as to her does not depend, in any manner, upon tbe disposition of tbe cause as to *her*co-defendant.

Tbe complaint seems to have been drawn on tbe theory, tbat tbe survey of Mary Love’s claim was confirmed under tbe Act of Congress of June 14, 1860; and tbat as tbat Act permitted tbe parties to apply for, and file with tbe Commissioner of tbe General Land office, tbe survey and its confirmation, it was their duty to do so; and tbat as they failed to avail themselves of tbe provisions of tbat Act, tbe delay in issuing tbe patent was attributable to their default. But tbat Act was expressly repealed by tbe Act of July 1, 1864 (13 TJ. S. Stats, p. 332), and tbe latter Act took effect before tbe confirmation of tbe survey. No provision is made by *that Act for tbe transmission of tbe survey to tbe Land Department by tbe confirmee. Tbat duty was *97left with tbe Surveyor-General, and if there was any neglect or unnecessary delay in tbe performance of tbe duty, neither Mary Love nor her husband is responsible for it. Every act in tbe matter, from tbe confirmation of tbe survey to tbe issuing of tbe patent, is an official act; and tbe con-firmee cannot be regarded as in default because of tbe delay in issuing tbe patent. We are therefore of tbe opinion, that tbe complaint fails to show that tbe money mentioned in tbe contract bad become due.

Appeal as to Harry Love dismissed, and judgment as to Mary Love affirmed; and ordered that judgment be entered as of tbe 14th day of December, A. D. 1868.