Wertz v. Jones

• Citation: 34 N.E. 1,134 Ind. 475
• Decision Date: 12 May 1893
• Docket Number: 16,269
• Parties: Wertz et al. v. Jones
• Court: Supreme Court of Indiana

34 N.E. 1

134 Ind. 475

Wertz et al. v. Jones

No. 16,269

Supreme Court of Indiana

May 12, 1893

From the Henry Circuit Court.

Judgment affirmed.

B. L Smith, C. Cambern and M. E. Forkner, for appellants.

W. A Cullen, J. D. Megee, W. J. Henley, L. D. Guffin and J. R Mellett, for appellee.

OPINION

Olds, J.

The appellant, Louisa C. Wertz, her husband joining with her, brought this suit against the appellee, asking the cancellation of a mortgage. She alleged in her petition that she was the owner in her own right, of certain real estate; that on the 27th day of August, 1886, her husband, Hiram Wertz, was indebted to appellee, Jones, in the sum of $ 1,236; that to secure the debt of her husband she gave her note and a mortgage on her separate real estate; that the mortgage was signed, acknowledged and recorded; that she was a married woman at the time; that no money was loaned to her, nor was the money used to improve her separate real estate; that there was no other or different consideration for the execution of said note and mortgage; that the sole consideration for the mortgage was the surrender of notes, by appellee James, evidencing the debt of her husband; that said mortgage is void as to her, and asks the cancellation of it. No question is made as to the sufficiency of the complaint.

Issues were joined on the complaint and a trial had, resulting in favor of the appellee.

The appellee answered in three paragraphs, the first a general denial, the second alleged "that on and prior to the 27th day of August, 1886, Hiram Wertz, who was and is the husband of the plaintiff, was indebted to the defendant in the sum of $ 1,236.35, for which he held the notes of said Hiram Wertz; that on said day the said Hiram and his wife came to him and represented to him that said Hiram was ready and had the money to pay off said notes, but that his said wife was the owner of a certain tract of real estate in Rush county, Indiana (which defendant knew was true), and that she would like to borrow the money for her own separate use and to improve her said real estate, and if said defendant would loan her the money she would execute to him her note and a mortgage on her said real estate, in which her husband would join; that these statements were made by both the plaintiffs, Hiram and his wife, to said defendant, both Hiram and his wife being present, and both making said statements; that thereupon said defendant said to them that he did not need the money, and if it was made secure to him he would loan it to her; that thereupon said defendant and said Hiram and the plaintiff went to the law office of Smith & Henley, where the same statement was made by the plaintiff in the presence of said Henley, to wit: That if the said defendant would loan her the money now in the hands of her husband for her separate use, and to improve her separate real estate, she would execute to him her individual note, secured by a mortgage upon her said real estate, and thereupon executed the following instrument in writing, and swore to the same before a notary public, to wit:

"State of Indiana, Rush County:

"Louisa Wertz, being duly sworn, upon her oath says that the money borrowed of John A. Jones on this day, to wit, $ 1,236.35, and for which I have given my note this day, due in one year, with the privilege of extending the said note from year to year for five years, was borrowed by me for my own separate use and for the improvement of my separate estate and land" (signed and sworn to); that defendant relied upon the statements, affidavit, and representations of said plaintiff, and would not have loaned her the money but for these, and he loaned her the money in good faith, fully relying upon what she so represented and swore to; that as a part of the same transaction and at the same time she did sign the note for said money, and executed, together with her husband, the mortgage to secure the same; that as a part of said transaction, and in her presence, the defendant surrendered to said Hiram his note for said sum of money, canceling the same, and accepted the note and mortgage of the plaintiff, and directed him to pay the money to her, which he said he would do, and which she said was all right; that, subsequently, plaintiff paid the interest at different dates up to August 27, 1889.

Wherefore, etc., she is estopped from denying that the note and mortgage is her own act and for her own separate use.

A demurrer was filed to this second paragraph of answer, which was overruled and exceptions reserved, and the ruling assigned as error, and is the first alleged error discussed. Counsel for the appellant state their objection to this paragraph as follows:

"It is by way of estoppel. This paragraph does not allege that the appellant, Mrs. Wertz, was ever paid any money by Jones, or by her husband. The answer does not state facts sufficient to constitute an estoppel. Jones, the appellee, did not part with any right, property or money. There is no allegation that Mrs. Wertz ever received a single dollar of the money. On the contrary, the pleader contents himself with the averment that the appellee directed the payment of the money by Mr. Wertz to the appellant, Mrs. Wertz; that Mr. Wertz agreed to pay it and appellant said it was all right. The answer shows that the consideration of the note secured by the mortgage was to pay the debt of the husband, and is therefore void."

Section 5117, R. S. 1881, provides that a married woman shall be bound by an estoppel in pais, like any other person, and our decisions affirm this doctrine. A married woman can not bind herself as surety for her husband, but she may bind herself upon her individual contract, made for her own benefit.

If the answer shows the contract to be one made in her own behalf and for her own use and benefit, or if it shows that she, by...