Collins v. Cornwell

• Citation: 30 N.E. 796,131 Ind. 20
• Decision Date: 30 March 1892
• Docket Number: 15,680
• Parties: Collins v. Cornwell et al
• Court: Supreme Court of Indiana

30 N.E. 796

131 Ind. 20

Collins v. Cornwell et al

No. 15,680

Supreme Court of Indiana

March 30, 1892

From the Dearborn Circuit Court.

Judgment reversed, at costs of appellees, with instructions to overrule the demurrer to the second paragraph of the complaint.

H. D McMullen and W. R. Johnston, for appellant.

J. K Thompson, for appellees.

OPINION

Olds J.

This was an action brought by the appellant, Marcus Collins, against the appellees, Mary Cornwell and Levi E. Cornwell, husband of the said Mary, for judgment on a note, and for the foreclosure of a mortgage securing the same.

Issues were joined and a trial had, resulting in a judgment in the appellant's favor upon the note; and the contention arises over the right to a foreclosure of the mortgage.

There was a motion made by the appellee Mary Cornwell to strike out the exhibit to the first paragraph of the complaint, which motion was sustained, and the ruling is assigned as error.

There is no question presented by this assignment. To have saved the question the exhibit struck out should have been brought into the record by bill of exceptions, and this was not done.

The next question presented arises on the ruling of the court in sustaining a demurrer to the second paragraph of the complaint asking for a reformation and foreclosure of the mortgage.

The mortgage is in the usual form, terminating as follows: "In witness whereof the mortgagors have hereunto set their hands and seals this 31st day of March, 1885,"--and is signed by both Mary Cornwell and her husband, Levi E. Cornwell, and both of their names appear in the certificate of the notary public, he certifying that both appeared and acknowledged the execution of the mortgage. The paragraph of the complaint contains proper averments showing the agreement to loan to Mary Cornwell $ 800, she to execute her note secured by mortgage on the real estate to be executed by herself and her husband joining with her, and showing the name of the husband to have been omitted from the body or conveying part of the mortgage by mutual mistake.

The ruling of the circuit court was to the effect that the mortgage was void, for the reason that the husband did not in fact join in the mortgage, his name not appearing in the body of the mortgage, and that it could not be reformed, corrected and foreclosed; that the only right the wife has to encumber her real estate is given to her by statute, and that she can only convey by deed in which her husband joins. Section 5116, R. S. 1881. This section of the statute requires the husband to join in the execution of a deed or mortgage of the wife's real estate.

We are referred to some authorities by counsel for the appellees, to the effect that to convey a husband's or wife's interest in real estate the name must appear in the conveying clause; that the deed, to be a valid conveyance of...