Cochran v. Benton

• Decision Date: 15 November 1890
• Docket Number: 14,571
• Citation: 25 N.E. 870,126 Ind. 58
• Parties: Cochran et al. v. Benton et al
• Court: Indiana Supreme Court

25 N.E. 870

126 Ind. 58

Cochran et al. v. Benton et al

No. 14,571

Supreme Court of Indiana

November 15, 1890

From the Daviess Circuit Court.

The judgment is affirmed, with costs.

J. W Ogdon, M. F. Burke, R. C. Gray, S. J. Peelle and W. L Taylor, for appellants.

W. R Gardiner, S. H. Taylor and W. C. Johnson, for appellees.

OPINION

Mitchell, J.

The questions for decision arise upon the following facts: In October, 1877, George W. Cochran executed a mortgage on certain real estate owned by him in Daviess county, Indiana, to secure certain debts due sundry persons, amounting in the aggregate to $ 1,400; subsequently Cochran, through the intervention of a trustee, conveyed the land, by way of gift, to his wife, Martha A. Cochran, who took the title expressly subject to the mortgage theretofore executed by her husband. The debts for the security of which the original mortgage was executed remaining unpaid, Cochran and wife executed a new mortgage to secure the amount, with accumulated interest, the last mortgage bearing date July 5, 1880. On the 20th day of April, 1881, a new loan was negotiated, from Kendrick W. Benton, with which to pay off the above mortgage and interest, together with some delinquent taxes, and to secure this loan Cochran and wife executed their joint note and mortgage on the Daviess county land. The loan included a sum in addition to that required to pay off the liens on the land, but as the excess is in no way involved in this appeal, it is of no consequence to inquire how it was used.

Cochran and wife were residents of the State of Kentucky at the time the several mortgages were executed, and a statute of that State, which is made part of the record, provided, in effect, that the separate real estate of a married woman should not be liable for any debt of her husband contracted or incurred before or after marriage, but should be liable for her debts contracted, or incurred, before marriage, and for such debts contracted after marriage on account of necessaries for herself or any member of her family, her husband included, as should be evidenced by writing signed by her. Both Cochran and wife have died, and the mortgaged property, by the last will of Martha A. Cochran, was devised to the appellants, the children of the testatrix.

They defended against the mortgage, on the ground that the real estate mortgaged was the separate property of their mother; that the debt secured was the debt of their father, and was not contracted, or incurred, on account of necessaries, within the meaning of the statute of the State of Kentucky, which they pleaded in their answer, and that the note and mortgage were, therefore, not binding.

The mortgage was enforced against the land to the extent that the money secured thereby was obtained and applied to the purpose of removing prior encumbrances.

The statute of Kentucky, which is relied on, has no relation to the power or capacity of a married woman to convey, or encumber, her separate real estate. It simply provides that neither her real estate, nor the rents thereof, shall be liable for the debts of her husband, but it shall be liable for her debts contracted for necessaries, where the debts thus contracted are evidenced by writing signed by her.

There is nothing in the record which in any way indicates whether or not a married woman has power to...