Levering v. Shockey

• Decision Date: 12 March 1885
• Docket Number: 11,651
• Citation: 100 Ind. 558
• Parties: Levering et al. v. Shockey et al
• Court: Indiana Supreme Court

100 Ind. 558

Levering et al. v. Shockey et al

No. 11,651

Supreme Court of Indiana

March 12, 1885

From the Tippecanoe Superior Court.

F. H Levering and J. A. Stein, for appellants.

W. D Wallace, for appellees.

OPINION

Colerick C.

This case is concisely and correctly stated by the appellees in their brief, as follows:

"This was an action commenced by the appellee Sophia E. Shockey, a married woman, to cancel a mortgage executed by her on her separate property to the appellant William H. Levering trustee, to secure a debt of her husband, Robert C. Shockey.

"The appellant Eliza J. Heath, being the beneficiary for whom Levering acted as trustee, was made a party defendant.

"The mortgage was executed on the 15th day of March, 1880, and the complaint is based on the 10th section of the act concerning married women, approved March 25th, 1879, which forbids a married woman to mortgage her separate property, 'acquired by descent, devise or gift, as a security for the debt' of her husband.

"The complaint shows that the appellee was the wife of Robert C. Shockey at the time of the execution of the mortgage; that the appellant Levering loaned eight hundred dollars in money to her said husband, and took his individual note and certain interest notes for the same; that she executed the mortgage on her separate real estate, which she had long since acquired, and then held, by gift from her said husband, who had conveyed the same to her through the intervention of a trustee on the 14th day of June, 1873, and that said mortgage was executed at the solicitation of her said husband, and to secure his said loan from Levering, and for no other purpose and upon no other consideration.

"The appellants answered in three paragraphs.

"The first was a general denial.

"The second paragraph, while not denying that the appellee had acquired title to the mortgaged property by gift, averred that the deed through which she obtained title, executed by John Dickson, the person to whom her husband had conveyed, imported on its face a valuable consideration, as did prior deeds in the chain of title, and that these deeds were of record at the time of the execution of the mortgage, and that appellants relied upon these records for knowledge of the nature of the appellee's title; wherefore they claimed that she was estopped from asserting that she had acquired the title by gift.

"The court sustained a demurrer for want of facts to this plea, and appellants excepted.

"The third paragraph filed by appellants was a cross complaint, in which they declared on the notes and mortgage, in the usual way, and asked for judgment and a decree of foreclosure.

"The appellee answered the cross complaint in two paragraphs.

"In the first she set up the matters averred in her complaint, viz., her coverture, separate property in herself acquired by gift, and that the mortgage was given as a security for her husband's debt, etc., etc. This answer to the cross complaint the court held good on demurrer, and the appellants replied to the same by general denial.

"Appellee's second paragraph of answer to cross complaint was a general denial.

"The issues thus formed were tried by a jury, who found for the appellee, and that the mortgage was invalid and should be cancelled.

"The evidence, which is all in the record, shows that Robert C. Shockey, who was the owner of the mortgaged premises, on the 14th day of June, 1873 (his wife joining therein), conveyed the land by warranty deed to one John Dickson, who, on the same day and at the same time, conveyed the land by like warranty deed to the appellee. Both of these deeds, which were duly recorded, import on their face a consideration of three thousand dollars. The clear, unequivocal and uncontradicted proof, however, was, that there was no consideration whatever for the deeds, but that Dickson was a mere trustee to effect the transfer, and that the transaction was a pure gift from the husband to the wife, and that, too, at a time when he was not in debt."

The only question presented by the appellants for our consideration is, Was Mrs. Shockey estopped, by the recitals expressed in the deeds, as to the consideration upon which they purported to be founded, from assailing the validity of the mortgage, by averring and proving that the deeds were, in fact, executed without consideration, and conveyed to her merely by way of gift the property therein described?

At the time of the execution of the mortgage a statute existed in this State which provided 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, Spec. Sess., p. 160, section 10. By the explicit language of this statute, Mrs. Shockey was absolutely prohibited from executing the mortgage in question, and as it was executed by her in contravention of the inhibition so imposed, it was and is void. See McCarty v. Tarr, 83 Ind. 444; Gregory v. Van Voorst, 85 Ind. 108; Frazer v. Clifford, 94 Ind. 482.

The actual consideration of a deed may be shown by parol evidence. Headrick v. Wisehart, 57 Ind 129; McDill v. Gunn, 43 Ind. 315; Stearns v. Dubois, 55 Ind. 257; Welz v. Rhodius, 87 Ind. 1 (44 Am. R. 747), and cases cited. Either party may show for any purpose, except to defeat its operation as a valid and effective grant, the true consideration of a deed, although it be entirely different from that expressed in the deed. Mather v. Scoles, 35 Ind. 1. The consideration expressed is the least important part of the instrument, and may be varied to almost any extent by parol evidence, as the estate created does not depend upon it, but upon the conditions and limitations contained in the instrument, descriptive of its quantity and duration. Thompson v. Thompson, 9 Ind. 323. When one consideration and no other is expressed in a deed,...