Cook v. Walling
| Decision Date | 22 January 1889 |
| Docket Number | 13,506 |
| Citation | 19 N.E. 532,117 Ind. 9 |
| Parties | Cook v. Walling |
| Court | Indiana Supreme Court |
From the Floyd Circuit Court.
The judgment is affirmed, with costs.
J. V Kelso, for appellant.
A Dowling and J. H. Stotsenburg, for appellee.
The question for decision arises upon the following facts, which are admitted by the pleadings: In December, 1855, the appellee, Mary C. Walling, became the lawful wife of Creed A Walling, who, after living with her until some time in the year 1860, went to parts unknown and was not again heard of until the year 1876, a period of some sixteen years. After Walling had been thus absent for more than seven years acting under the supposition that he was dead, the appellee married Alexander E. Hughes, and removed from a foreign State with him, where they had theretofore resided, to Floyd county, Indiana. She purchased a tract of land in the above named county, which was conveyed to her by the name of Mary C. Hughes. In 1875, the appellee, by the name of Mary C. Hughes, joined with her supposed husband, Alexander E. Hughes, in mortgaging the real estate so purchased and owned by her, to secure a debt due from Hughes to the appellant, Kate C. Cook. The appellee lived and cohabited with Hughes, and claimed him as her husband, and claimed and was reputed to be his lawful wife, during all the time they lived in Indiana, until the year 1876, when Walling returned and made the fact known that he was still in life, whereupon the appellee obtained a divorce from Hughes, and resumed and has ever since continued marital relations with Walling.
The question is, whether or not in a suit to foreclose the mortgage given as above, the facts hereinbefore recited are sufficient to avoid a special plea by Mary C. Walling, in which she alleged that the lands described in the mortgage were her separate estate, and that at the time of the execution of the mortgage, she was and ever since had been the wife of Creed A. Walling, and that he did not join in the execution of the mortgage.
A statute touching the marriage relation, in force at the time the mortgage was executed, as well as that now in force, declares that a married woman shall have no power to encumber or convey her real estate, except by deed in which her husband shall join. 1 R. S. 1876, 550 (section 5117, R. S. 1881).
It being conceded by the record that the appellee was, at the time she executed the mortgage, the lawful wife of Creed A. Walling, and that he did not join therein, it follows inevitably that the mortgage was a nullity. The power of a married woman to convey or encumber her separate real estate is wholly statutory, and any deed or other instrument purporting to convey or encumber her land, in which her husband has not joined, is absolutely void because of the want of power or capacity on her part to execute such an instrument without being joined therein by her husband. As has been said, "The instrument has the form and semblance of a deed, and nothing more." Lowell v. Daniels, 2 Gray, 161 (61 Am. Dec. 448). It is without legal force and of itself creates no equity which the courts can recognize or protect. Otis v. Gregory, 111 Ind. 504, 13 N.E. 39, and cases cited.
Tacitly conceding the invalidity of the instrument, it is, nevertheless, contended with much plausibility, that, because the appellee was living and cohabiting with Hughes, and because the latter, assuming to be her husband, joined in the execution of the mortgage, she ought now to be estopped from asserting that her husband did not join therein.
An estoppel in pais has for its foundation the proposition that a person sui juris has, by misrepresenting the truth, purposely induced another to believe in, and act upon, the existence of certain facts which, if they were now made to appear different from what they were represented to be, would cause substantial injury to the person who acted on the faith of the representation. When, therefore, a married woman deals, or assumes to deal, in respect to a matter concerning which her common law disabilities have been removed, she will be bound by an estoppel in pais, as any other person, and in case she makes affirmative representations concerning the character in which she proposes to contract--whether for the benefit of herself or of some third person--and thereby...
To continue reading
Request your trial