Barritt v. Swan

Pee Curiam. —A married woman assumed a mortgage on land conveyed to her by Barritt in exchange for other lands she conveyed to Barritt subject to a mortgage thereon. Barritt, who is liable as mortgagor for the mortgage the. married woman assumed, sought under Section 2, Article XI of the Constitution, to subject in equity some of the lands being the separate property of the married woman to the payment of the amount of the mortgage assumed by her, upon the theory that the assumption of the mortgage was a part of the purchase price of the land conveyed to the married woman by Barritt. The mortgaged lands conveyed to the married woman are subject to the mortgage she assumed in taking a conveyance of the land from Barritt, and such mortgage may be duly enforced against the lands it covers; but the Constitution does not authorize Barritt, the mortgagor, to proceed in equity to subject the land to the payment of the amount of the mortgage thereon, even if the married woman did assume the mortgage as a part of the purchase price of the land conveyed to her by Barritt. The decree dismissing the bill of complaint is affirmed. Buford, C.J., and Whitfield, Ellis, Terrell and Brown, J.J., concur. *326 Davis, J., dissents.