Damon v. Deeves

Campbell, J.

Plaintiff brought ejectment on a valid foreclosure sale under a mortgage given by defendant, on which she was in default. The only defense made, and which prevailed, was that the mortgage was given to secure a note' signed by defendant, who is a married woman, and that the-note was not for her own benefit, but to secure a liability of a son-in-law. The circuit judge held that, inasmuch as-a married woman cannot become personally bound as a surety, the note was void, and the mortgage was, for the same reason, void.

We think this was erroneous. There is no restriction under our Constitution and statutes which will prevent a married woman .from creating express liens on her property for any lawful purpose that could be the foundation of such-action on the part of an unmarried woman. A mortgage to' secure another person’s debt is valid beyond question. That was really the purpose of this mortgage. The right to' enforce a note personally is not necessary to make a mortgage securing it' good. The defense of the statute of limitations or bankruptcy may defeat altogether any personal claim, but will not destroy the mortgage lien. Michigan Ins. Co. v. Brown 11 Mich. 265 ; McKinney v. Miller 19 Mich. 142 , P owell v. Smith 30 Mich. 451 .

As defendant saw fit to give an express mortgage security upon a lawful consideration, we do not think it is invalidated by the fact that she cannot bo sued on the note. Under the old decisions upon equitable separate estates, such a note would-have bound her separate estate without a mortgage. Under our decisions the lien must be express. But there is no reason for holding that such a note will vitiate a security which refers to it as descriptive of the debt secured. The intention of the mortgage is lawful, and the lien on the property is cleaidy defined. Nothing more is needed to bind the land-

The judgment must be reversed with costs and a new trial granted.

Sherwood and Champlin, JJ., concui’red.