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Comley and Wife v. Hendricks
Dewey, J.
This was a bill of foreclosure and for the sale of mortgaged premises, brought by Hendricks, the mortgagee, against Comley and his wife, the mortgagors. The defendants appeared, but the husband only answered. He admitted the bill to be true; but alleged that several years before the execution of the mortgage, he sold and conveyed one of the tracts of land contained in the mortgage to one Absalom Comley, by a deed duly acknowledged and recorded. No steps were taken to procure the answer of the wife. The cause was submitted upon bill, answer, and exhibits, without any evidence whatever. The Court decreed against both defendants a foreclosure of the equity of redemption, and a sale of the mortgaged premises, “saving and reserving the rights of Absalom Comley in the premises, if any he hath.”
This decree is erroneous. There was nothing to authorize a decree against the wife. The regular course of practice was for the wife to join in the answer of her husband. Story’s Eq. Pl. 670. — Coop. PI. 325. But had she so joined and admitted the bill to be true, the answer would have been considered only as the answer of her husband, and her admissions would not have been evidence against her. Gresley’s Eq. Ev. 24. — Hodgson v. Merest, 9 Price, 556. — Elston v.
[190] Wood, 2 M. & K. 678. — 1 Smith’s Ch. Pr. 253. The wife should have joined in the answer of her husband; and the. allegations of the bill should have been proved to authorize a decree against her.
M. G. Bright, for the plaintiffs. D. Wallace, for the defendant.
It is contended that the decree is erroneous because Absalom Comley was not made a party. But we do not consider it essential that he should have been a party. No decree could have been rendered against him; nor could his rights have been prejudiced by any decree in this cause, even had they not been saved by the terms of the decree.
It should be remarked that the description of the premises in the decree is entirely too vague.
Per Curiam.
The decree is reversed with costs. Cause remanded, &c.