Yager v. Merkle

Berry, J. On March 19, 1872, Henrietta Hemerick executed, acknowledged, and delivered to the defendant a mortgage upon certain real estate, of which she was owner in fee simple. She was a married woman, living with her husband, but he did not join in with her in the mortgage. The mortgage was not given to secure purchase-money of the mortgaged land. It was duly recorded. On May 17, 1878, the said Henrietta, her husband joining, sold and duly conveyed the land to the plaintiff, who brings this action to prevent a threatened and pending foreclosure of the mortgage, and to remove the cloud created by it upon his title. The statute in. force at the time of the execution of the mortgage — Laws. 1869, c. 56, (Gen. St. 1878, c. 69,) — provides, in section 2, “that no conveyance or contract for the sale of real estate, or of any interest therein, by a married woman, other than mortgages on lands to secure the purchase-money of such lands, and leases for terms not exceeding three years, shall be valid, unless her husband shall join with her in such conveyance,’' [433] with a saving not here important. There is no doubt that,under this statute, the mortgage involved in this case is void. The principal fact which makes it void, to wit, that the person executing it is a married woman, does not appear upon the face of the mortgage or of its record. But, to avoid the mor! gage, this fact must be shown by extrinsic evidence., The mortgage is, therefore, a cloud upon the plaintiff’s title, in the sense in which that term is used in equity. The mortgage being void under the-statute, and a cloud upon plaintiff’s title, he is clearly entitled to have the foreclosure proceedings stopped, and the mortgage declared void. The order sustaining the plaintiff’s demurrer to defendant’s answer is affirmed.