Wolff v. Van Metre

Wright, Ch. J.

i. husband mSetpT™' *136 s._perabufty." 3._valid-tractfcon

*135 Aside from the effect to be given to the mortgage made by the wife, and the judgment upon one of- the notes secured thereby, there could be but little doubt upon, the authority of Jones v. Crosthwaite and Wife, 17 Iowa, 393 ; Patten v. Kinsman, Id., 428 , and Fyffe v. Beers, 18 Iowa, 4 , and the authorities there cited, that this demurrer was properly overruled. These cases, however, do not by any -means determine that the *136 wife may not mortgage her separate property to secure her own or the husband’s debts, so as to be bound thereby, in equity at least, to the same extent as though sui juris. On the contrary, her ability and right to do so without the aid of the statute, is expressly recognized in the first of the above cases (p. 399), and there is certainly nothing in our legislation impairing the validity of such securities. (See Blake, v. Blake, 7 Iowa, 46 , and the provisions of the statute there cited.) In recognizing the validity of such a mortgage, it must not be understood that it gives the holder thereof any right to a personal claim against the wife (when made to secure the husband’s debts), or to anything more than the security contained therein, certainly not beyond the wife’s separate estate. And it is also proper to remark that the validity of such an instrument between the parties to it depends upon its being fairly obtained without the use of undue and improper influences on the part of the creditor and husband. Courts of equity will guard with jealous care the rights of the wife in all such contracts, that she may not be overreached and her estate squandered. In this case there is no suggestion of this character, but the defense is placed alone upon the want of power to make the mortgage.. Believing that in equity such a mortgage may be upheld, the demurrer to this extent should have been overruled.

4_Judg_ ment As to the judgment being rendered upon personal service vice by a court of competent jurisdiction, we do not see why the wife is not bound by it.

In the absence of fraud on the part of the creditors, or the use of those means which would mislead or prevent her from defending the action, or some circumstances which show that she should not in equity be concluded thereby, it seems to us that the creditor is entitled to the benefit of such adjudication. Prima facie it certainly *137 determines the binding force of the contract. And in the absence of some equitable showing, it must be accepted as settling the right of the creditor to enforce the contract at least against her separate estate. The answer contains nothing sufficiently impeaching the judgment, and was therefore obnoxious to the demurrer. (Rev., §§ 2771, 2772, 2773, 2774, 2933.)

We remark, in conclusion, that we decide the case upon the questions made by the demurrer, and as between the creditors and the wife alone. It will be remembered that the lands were conveyed to the children before the execution of the mortgage, and hence before the rendition of the judgment. How far their rights are to be affected by these subsequent acts of their grantor, is a question of much difficulty; one that is not before us, and we pass its consideration until it legitimately arises. Because the matter stated in the clause of the answer above referred to, conceding their truth, were no defense to the plaintiff’s action, the demurrer should have been sustained, and the judgment must be reversed. Beyond this we do not go at present.

Reversed and remanded, with leave to amend.