Knoll v. Kiessling

Waldo, C. J. The objection to the admission of the note in evidence, now made for the first time, that the signature of the maker and of the endorsers, Hobart, Wood & Co., were not proven, not having been made when the note was offered in evidence, was waived. The evidence to impeach the mortgage on the ground of fraud in obtaining it, in this, that the mortgage did not contain important clauses of the agreement which Mrs. Kiessling supposed were included in it, is insufficient for the purpose. It is testimony which contradicts the contract. A clear case must be made out to produce that result. If the evidence in this case were sufficient for that purpose, no written contract would be safe. It is impossible with any due regard to the safety of business transactions to act upon the testimony in this case, and relieve Mrs. 10 Kiessling from her solemn written obligation. It is extremely doubtful if the alleged representations of Saufiy amount to an estoppel, were we to take the ground that they were actually made: Big. Estop. 476. But we place our decree expressly upon the ground that the testimony is insufficient to impeach the written instrument. There does not seem, however, anything to bind Mrs. Kiessling to a personal liability beyond the value of her property mortgaged, except the bare covenants in the mortgage. A wife’s covenants, where she binds her property as security for her husband’s debts, should not be- construed to create a personal liability beyond the value of her property mortgaged, unless she be a party to the contract of indebtedness, which in this case she is not. To this extent, therefore, the decree should be modified. But as this point was not a ground of contention below between the parties, it seems proper that the costs should follow the decree. With this exception the decree will be affirmed.