Schneider v. Staihr

Scott, Judge,

delivered the opinion o£ the court.

1. It cannot be maintained that the act of the 5th March, 1849, exempting the property of married women from the debts of their husbands, was designed to prevent femes covert from disposing of their real property by a voluntary conveyance, for whatever purpose they thought proper. If married women, clothing their deeds with the solemnities required by law to make them effectual, will convey away their estates, the law does not interpose to prevent them. Without their consent signified in the manner prescribed by law, their property cannot be taken by execution to satisfy their husband’s debts. But if they will voluntarily give it away, they cannot be prevented. The husband and wife may unite in a sale of the wife’s land, and apply the money thus obtained in payment of the husband’s debts. If this can be done, what is- to prevent her from joining in a mortgage with her husband, and thereby subject her land to the satisfaction of his liabilies?

2. The wife being a minor at the time of the execution of the mortgage, her infancy may be set up in avoidance of the deed.. As to the time of avoiding contracts made by infants, the weight of authority seems to be that, in cases of sales of land, infants cannot conclusively avoid the conveyance until they are-of age. (Amer. Leading Oases, 1 vol. 114.) As in this instance, the effect of the omission of the wife to plead her infancy, would be to subject her estate to be sold under execution, by which an innocent purchaser might be injured, and as this proceeding is in the nature of an action to subject her estate to the payment of a debt, from analogy to the course in a suit on a contract by which an infant is jointly bound with others, we see no impropriety in permitting her to set up her' infancy, though under age, in avoidance of this claim against her. In coming to this conclusion, we do not wish to be understood as expressing any opinion as to the consequence of an omission to plead, during her minority, her infancy in actions! like the present

*272 4. As tbe husband, by virtue o£ Ms marriage, was vested with an estate during its continuance.in his wife’s real property, the court should have proceeded in the suit and condemned that interest to sale. Moreover, as there was. personal service of the writ, the plaintiff was entitled to a general judgment, and therefore, though the mortgaged property failed to satisfy it, he would have been entitled to execution against any other property belonging to the mortgagor.

4. We do not see the propriety of making the sheriff a party to this suit, who was charged with the duty of making sale of the mortgaged premises in another suit for partition. The object of this step, it seems, was to subject the money arising from the sale in partition to the satisfaction of the judgment in this cause, or at least such portion of it as the defendants would be entitled to. Such a course would lead to inextricable confusion, and there is no warrant in law for it. The plaintiff in this suit will sell such interest as the mortgagor had in the mortgaged premises, and the purchaser, after he has obtained his deed, will assert his rights against those claiming under the sale in partition, as they would take subject to the mortgage, it having been recorded prior to those proceedings.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.