Swank v. Hufnagle

• Decision Date: 26 May 1887
• Citation: 111 Ind. 453,12 N.E. 303
• Parties: Swank v. Hufnagle.
• Court: Indiana Supreme Court

111 Ind. 453

12 N.E. 303

Swank

v.Hufnagle.^a1

Supreme Court of Indiana.

May 26, 1887.

Appeal from circuit court, Miami county.

Shirk & Mitchell, for appellant. Effinger & Loveland, for appellee.

Elliott, J.

The appellant sued the appellee, Melissa Hufnagle, and her husband, upon a note and mortgage executed in Darke county, Ohio, on land situate in this state. The appellee, Melissa Hufnagle, answered that she was a married woman, and that the mortgage was executed by her as the surety of her husband, and assumed to convey land in this state owned by her. The appellant replied that the contract was made in Ohio, and that, by a statute of that state, a married woman had power to execute such a mortgage; but the statute of Ohio is not set forth.

The trial court did right in adjudging the reply bad. The validity of the mortgage of real property is to be determined by the law of the place where the property is situated. Mr. Jones says: “A mortgage, of course, takes effect by virtue of the law of the place where the land is situated.” 1 Jones, Mortg. § 823. This is well-settled law. Story, Confl. Laws, (8th Ed.) 609, authorities in note; Bethell v. Bethell, 92 Ind. 319. Judge Story, in sections 66 and 102 of his work on the Conflict of Laws, does not treat of conveyances or mortgages of land, but of contracts of an entirely different class, so that the appellant gets no support from what is there laid down as the law. Under the act of 1881 a mortgage executed by a married woman as surety on land owned by her in this state is void.

There is another reason for adjudging the reply bad, and that is this: it does not set out the foreign statute on which it professes to be based. It is well settled that where a pleading is founded on a foreign statute, the statute must be set forth. Wilson v. Clark, 11 Ind. 385;Mendenhall v. Gately, 18 Ind. 149;Kenyon v. mith, 24 Ind. 11;Tyler v. Kent, 52 Ind. 583;Milligan v. State, 86 Ind. 553.

We cannot disturb the finding on the evidence. Judgment affirmed.

a1. Rehearing denied, 13 N. E. 105.