Mclead v. The Aetna Life Insurance Co.
| Decision Date | 17 September 1886 |
| Docket Number | 12,663 |
| Parties | McLead et ux. v. The AEtna Life Insurance Company |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
The judgment is affirmed, with costs.
W. S Christian and I. W. Christian, for appellants.
T. J Kane and T. P. Davis, for appellee.
This was a suit by the appellee to foreclose a mortgage, executed to it by the appellants, on certain real estate in Hamilton county, and to collect the debt secured thereby, evidenced by the joint notes of such appellants. The appellants jointly answered in a single special paragraph, and the appellant Malinda McLead separately answered in a single affirmative paragraph. To each of these answers, appellee's demurrer was sustained by the court. And the appellants declining to amend or plead further, judgment was rendered against them for the amount due on their notes, and a decree was entered for the foreclosure of the mortgage in suit, etc.
In this court the appellants jointly, and appellant Malinda separately, assigned as errors the sustaining of appellee's demurrers to their respective answers, and further, that the complaint herein does not state facts sufficient to constitute a cause of action, and that the demurrers to their answers should have been carried back by the court and sustained to appellee's complaint.
We will consider first appellants' objections to the sufficiency of appellee's complaint. There was no demurrer to the complaint, and its sufficiency is called in question for the first time in this court. It is claimed that "appellee's complaint does not state facts sufficient to constitute a cause of action against appellants jointly, or against the appellant Malinda McLead separately," because it fails to allege that appellant Malinda received either in person, or in benefit to her estate, the consideration of the notes and mortgage sued upon, or any part thereof. The notes and mortgage were jointly executed by the appellants on the 18th day of November, 1882, at which time the act of April 16th, 1881, "concerning husband and wife," which took effect on September 19th, 1881, was a part of the law of this State. In section 1 of such act, section 5115, R. S. 1881, it is provided as follows: "All the legal disabilities of married women to make contracts are hereby abolished, except as herein otherwise provided." In Arnold v. Engleman, 103 Ind. 512, 3 N.E. 238, after quoting section 5115 as above, the court said: "This confers a general power to make executory contracts except such as are prohibited by the statute." Rosa v. Prather, 103 Ind. 191, 2 N.E. 575; Barnett v. Harshbarger, 105 Ind. 410, 5 N.E. 718.
In section 5117, R. S. 1881, it is provided that a married woman "shall not enter into any executory contract to sell or convey or mortgage her real estate, nor shall she convey or mortgage the same, unless her husband join in such contract, conveyance, or mortgage." Section 5119, R. S. 1881, reads as follows: "A married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner; and such contract, as to her, shall be void."
Except as prohibited in these two sections, 5117 and 5119, as above, a married woman had and has the same power to make executory contracts, and was and is as much bound thereby, as if she had been or was unmarried at the time of their execution. If the appellee's complaint, in the case in hand, had shown that the appellant Malinda was the surety of her co-appellant in the notes in suit, or that the mortgaged real estate was her separate estate, it would have been necessary, perhaps, to have alleged the further fact, in order to state a cause of action against her, that she had received either in person or in benefit to her estate the consideration of such notes and mortgage, or some part thereof. Vogel v. Leichner, 102 Ind. 55, 1 N.E. 554. But as no such showing was made in the complaint, it was sufficient to withstand appellants' assignments of errors, and would have been good, we think, even upon demurrers for the alleged want of facts.
In their joint answer the appellants alleged that they were husband and wife, and, as such, owned jointly as tenants by entireties the real...
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