Conway v. Elgin

Collins, J. But two points need be considered on this appeal. 1. The fact that the order directing judgment for plaintiff upon the pleadings (complaint and answer) herein was reversed by this court does not, of itself, entitle defendant to judgment upon the same pleadings. The only question presented upon the appeal, and consequently the single one decided, was that defendant’s answer so far controverted plaintiff’s complaint as to entitle the former to a hearing upon the merits. This answer, while containing averments as to Mr. Conway’s indebtedness to the defendants Kelly & Co., its assignment to defendant Elgin, and the giving of the notes, — all of which were undoubtedly regarded by plaintiff as not affecting her right of action, as presented in her complaint, and therefore not inviting a reply, — put squarely in issue the material allegations, the unlawful and fraudulent diversion, in defendants’ interests, and with their knowledge, of the blank mortgage which plaintiff had been induced to sign and entrust to her husband, through his representations, which were also well known to defendants, that the mortgage should only be filled out and used in case he could compromise with all his creditors, and relieve himself of the financial disaster then imminent. The answer did not contain new matter requiring a reply; for the essential allegations therein are defensive only, — practically, a denial of plaintiff’s claim that she had been defrauded by the defendants’ acts. With such an issue of fact before it, the court very properly denied the defendant’s motion for judgment on the pleadings. 2. The appellant cites authorities from several of the states upon the proposition that as the mortgage blank was, after its'delivery by plaintiff to her husband, filled out by his consent, and then properly [471] signed, acknowledged, and delivered by him to one of the defendants, it is invalid only as against the homestead rights of the wife. The counsel evidently overlooked the fact that as early as 1875 this court interpreted the statute on this point, holding that a mortgage of the homestead by the husband, without the signature of the wife, is wholly void. Burton v. Drake, 21 Minn. 299. And this commendable conclusion has been repeatedly recognized since it was announced. Order affirmed.