Swank v. Hufnagle

Elliott, J. The appellant sued the appellee, Melissa Hufnagle, and her husband, upon a note and mortgage executed in Darke county, Ohio, on land situate in this State. The appellee, Melissa Hufnagle, answered that she was a married woman, and that the mortgage was executed by her as the surety of her husband, and assumed to convey land in this State owned by her. The appellant replied that the contract was made in Ohio, and that by a statute of that State a married woman had power to execute such a mortgage, but the statute of Ohio is not set forth. The trial court did right in adjudging the reply bad. The validity of the mortgage of real property is to be determined by the law of the place where the property is situated. Mr. Jones says: “A mortgage of course takes effect by virtue [454] of the law of the place where the land is situated.” 1 Jones Mortg., section 823. This is well settled law. Story Conflict of Laws (8th ed.), 609, auth. n.; Bethell v. Bethell, 92 Ind. 318. Filed May 26, 1887 Judge Story, in sections 66 and 102 of his work on the Conflict of Laws, does not treat of conveyances or mortgages of land, but of contracts of an entirely different class, so that the appellant gets no support from what is there laid down as the law. Under the act of 1881 a mortgage executed by a married woman as surety on land owned by her in this State is void. There is another reason for adjudging the reply bad, and that is this, it does not set out the foreign statute on which it professes to be based. It is well settled that where a pleading is founded on a foreign statute the statute must be set forth. Wilson v. Clark, 11 Ind. 385; Mendenhall v. Gately, 18 Ind. 149; Kenyon v. Smith, 24 Ind. 11; Tyler v. Kent, 52 Ind. 583; Milligan v. State, ex rel., 86 Ind. 553. We can not disturb the finding on the evidence. Judgment affirmed.