Lewis v. Graves

Mr. Justice Dickey delivered the opinion of the Court: The decree in this case can not be sustained. It has been settled by this court that the laws relating to the conveyance of the real estate of a married woman were not changed by the Married Woman’s Act of 1861. Cole v. Van Riper, 44 Ill. 58, and Bressler v. Kent, 61 Ill. 426. It follows that the mortgage, as a conveyance, was void, the husband of Mrs. Winters not having joined in its execution. It is, however, contended by appellee that the estate of a married woman should “ be held in equity liable for debts, charges and incumbrances which she expressly charges théreon,” and that a lien should “ be established in equity against the separate property of the wife for the debts contracted by her in her separate business, she having expressed her desire to create such a lien by her act in signing this mortgage.” This may be true, but a majority of the court think that such estate is not so held, except from and after the time when such lien “ is established in equity” by a decree of the court. The debt of a married woman is not, by its own force, a lien upon her separate estate. A mortgage made by her alone, as we have seen, is not such a lien, and while the execution of such a paper may be an expression of her desire to create such a lien, and may be a very satisfactory ground upon which a court of equity may properly establish a lien in equity against her separate property, still no sncli lien exists until it is established by the decree of the court. When so established, it can have no retroactive operation. Such a lien, when it takes effect, must act upon the property in the condition in which the decree finds it. The mechanic’s lien is of a different character. It derives its force from the statute. The doing of the labor, under tbé conditions required by the statute, creates, eo instanti, a lien upon the property, which continues from that moment until the debt is satisfied, unless it is waived, released or suffered to expire for want of proceedings, by the statute made necessary to keep it alive. In this ease, the mechanic’s lien was in existence, and was so declared by the court long before the decree establishing this mortgage debt as a lien upon the property in question. Lewis holds under the prior lien, and his rights can not properly be made subordinate to those of complainant. The decree is reversed, and the cause remanded. Decree reversed.