Smith v. Doe ex dem. Carson

BBICKELL, C. J. It would have been proper, in any view of this case, to have decided the precise question, to which the agreement of counsel requests the decision shall be confined. The mortgage, whatever may be its operation at law, in equity is a valid security for the payment of the purchase-money. The disability of a married woman to contract, can not be tortured into an ability to get and keep another’s land, without paying the purchase-money. — Chilton v. Braiden, 2 Black, 458; Pylant v. Reeves, at last term. Mrs. Carson held the lands, subject to the lien of the vendor, or his assignee, for the payment of the purchase-money. In Marks v. Cowles, at the last term, the question of this case was considered and decided. We held, that a married woman, having a statutory separate estate, purchasing lands, with the assent of her husband, making partial payment of the purchase-money from her separate estate, could not repudiate the transaction, and charge the lands with the reimbursement to her of such part of her separate estate. The husband having, under the statute, full power to make investments of money, her separate estate, the transaction was an investment; which must be supported, until impeached [458] for fraud or collusion between the husband and vendor.. The facts of that case are parallel with this; and we are satisfied with, and adhere to that decision. It is conclusive of the on which we are requested to an opinion. Judgment must be entered, reversing the judgment of the Circuit Court, and dismissing the action of ejectment; and the appellant must pay the costs Stone, J., not sitting, having been of counsel.