Cupp v. Campbell
| Decision Date | 08 October 1885 |
| Docket Number | 11,992 |
| Citation | 2 N.E. 565,103 Ind. 213 |
| Parties | Cupp et al. v. Campbell |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
Judgment is affirmed, with costs.
W Booth, for appellants.
T. J Kane and T. P. Davis, for appellee.
This action was brought to foreclose a mortgage, executed by Elizabeth and Jacob B. Cupp, to one Wainwright, and by him assigned to Eliza M. Campbell.
The facts upon which the questions for decision arise are fairly set out in a special finding of the court. Briefly stated they are as follows: Jacob B. and Elizabeth Cupp were, at the date of the execution of the mortgage in suit, husband and wife. The husband owned sixty acres of land in his own right, the wife, at the same time, being the owner of fifty-three acres, the title to which she acquired by devise from her father. On March 3d, 1880, Cupp and wife joined in a mortgage of her land to secure a debt owing by him which, at the date the mortgage in suit was executed, amounted, with interest, to $ 555.46. The husband's land was, at the same time, subject to two mortgages, amounting to over $ 1,800. Upon one of these the land had been sold but was still subject to redemption. For the purpose of paying off the husband's debts and discharging the encumbrances on the lands of both, a loan of $ 2,600 was negotiated with Wainwright, which was secured by the joint notes of Cupp and wife and their joint mortgage on their respective tracts of land. The money borrowed was applied, so far as required for that purpose, to the discharge of the husband's debts, which were secured as stated; the residue was used by the husband, and the respective mortgages were cancelled.
It was found by the court, "that the defendant Elizabeth executed the mortgage and notes sued on herein as surety for her husband Jacob, and the debt evidenced thereby was and is the debt of her said husband; that at the time of the execution of said mortgage she and her husband read it over, but by reason of inexperience in business she did not fully comprehend the legal effect of the following clause in said mortgage, to wit: 'This mortgage is not made for the purpose of securing or paying debts contracted by my husband Jacob Cupp;' that it was no fault of the mortgagee that they did not understand it, but the latter was not deceived or misled thereby, as he knew that the debts to be paid were the husband's, and that the money was to be used in discharge of said encumbrances on said real estate of said defendants." The court also found that Mrs. Campbell purchased the notes and mortgage sued on in good faith, without any knowledge that they were given to secure the husband's debt, and that she relied on the statement contained in the mortgage which was duly recorded.
Upon the facts found, the court stated as conclusions of law, that as to the separate property of the wife, the mortgage was void, and that as to her the notes were void also. As to the land belonging to the husband, it was stated as a conclusion of law, that the plaintiff was entitled to a decree of foreclosure against both.
Plaintiff and Mrs. Cupp excepted to the conclusions of law, and both assign for error, on this appeal, that the court erred in its conclusions of law.
On behalf of Mrs. Cupp, who prosecutes the appeal, it is contended that the facts found make the notes and mortgage, as to her, a contract of suretyship, and that as such it was void under section 5119, R. S. 1881, as well in respect of her inchoate interest in her husband's land as in respect of her separate estate. Concerning this contention, it may be said that while it has been held that a wife who joins her husband in a mortgage upon his real estate occupies, as to her inchoate interest therein, a relation so far analogous to that of a surety as that she has a right to an order directing that the two-thirds of the lands mortgaged be first sold to satisfy the debt, as in Leary v. Shaffer, 79 Ind. 567, Grave v. Bunch, 83 Ind. 4, Main v. Ginthert, 92 Ind. 180, it has nevertheless been distinctly ruled, as we now again hold, that the contract in such case is not one of suretyship within the meaning of the statute. Leary v. Shaffer, supra; Grave v. Bunch, supra; Dodge v. Kinzy, 101 Ind. 102.
In behalf of the appellee, it is argued that upon the facts found it results as a conclusion of law, that the wife occupied the relation of principal to the extent that the money borrowed was obtained for the purpose and applied to the removal of the prior mortgage on her separate estate. The consideration of the prior mortgage was conceded to be the husband's debt, and it was executed while the statute of 1879 was in force. This statute enacted that "A married woman shall not mortgage or in any manner encumber her separate property acquired by descent, devise or gift, as a security for the debt or liability of her husband or any other person." Acts 1879, p. 160, sec. 10.
The court having found that Mrs. Cupp acquired her land by devise, the prior mortgage was directly within the prohibition of the statute, and was therefore void.
Counsel argue that so much of the finding of the court as states that the title of the wife was acquired by descent is outside of any issue made in the pleadings, and that, under the rule in Boardman v. Griffin, 52 Ind. 101, and Town of Cicero v. Clifford, 53 Ind. 191, it can not be considered.
This argument rests upon the assumption that it was necessary for the wife in her answer to aver a state of facts from which her want of power to execute the mortgage, so far as it affects her lands, would affirmatively appear. This assumption is erroneous. We held in Vogel v. Leichner, 102 Ind. 55, 1 N.E. 554, upon consideration of the question, that where it was sought to enforce a contract against the property of a married woman, the plaintiff must aver and prove that the contract was one which she had the power to make.
As was said in the case of Bowman v. Kaufman, 30 La. Ann. 1021, "Nothing is better settled than that the debt must be shown affirmatively to have enured to her benefit, when a party is seeking to enforce it against a wife, * * and the fact that she is separated in property from him does not change the nature of the proof required, nor shift the burthen of proof." Brown v. Will, Ind. 71; 103 Ind. 71, 2 N.E. 283.
The plaintiff having declared upon the notes and mortgage, it was prima facie a sufficient answer for the wife to aver her coverture, as to the notes, and, as to the mortgage on the fifty-three acres, to add the fact that it was her separate property, and that the debt was her husband's. This cast upon the plaintiff the burden of avoiding her presumptive disability to bind herself by the notes, and her separate estate by the mortgage, by replying a state of facts from which it would be made to appear that they were executed upon a consideration which was intended either for her benefit or for the benefit of her estate. This the plaintiff assumed to do, by replying the previous encumbrance on her land, and by averring that it was a "valid lien," and alleging further that $ 555.46 of the money borrowed and secured by the mortgage in suit was applied to the discharge of the prior encumbrance. The averment in the reply that the prior encumbrance was a valid lien, although a conclusion of law, necessarily embraced a statement of all facts essential to make it a valid lien. One fact necessary to make it a valid lien, the reply having conceded that the debt was the husband's, was that the title to the land should have been acquired in some other way than by "descent, devise or gift." Although the reply was inherently bad, inasmuch as it was filed by the appellee, and held good by the court, it will be treated here, as against the appellee, as though all the facts and conclusions therein stated were well pleaded. It can not, therefore, be said that the finding of the court, that the land was acquired by devise, was not within the issue.
The mortgage which was discharged having been given to secure the debt of the husband, and the land having been acquired by devise, it results that the mortgage thus given was void within the terms of the statute, and the question which remains is,...
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