The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-03-20
SUPREME COURT DECISIONS
Reported weekly by i. w. Jenkins
Attorney at law,
MARY ii. HARTMAN,
VS..
w. j. MAGEE.

0 Appeal from the Chancery Court of LII
y coin county, Hon. Thomas Y. Berry
o Chancellor.
. Mrs. Hartman. through her husband
q borrowed of Magee $3.50, and executed
4 note for 800, the excess consisting G
0 usury embodied in the face of the note
! Whether the note was signed by the hus
! band does not appear, but both HUSBAND
} and wife joined in mortgage upon tn
wife's realty to protect it. The HUSBAND
represented to the lender that the none.
J was intended for the purchase of famil.
supplies and necessaries, but 1t was use'
if not borrowed by him for his own bust
ness. Magee subsequently paid taxes OF
the property to the amount Of forty or hitI
dollars, and loaned to Mrs. Hartman thu
further sum of fifty dollars, to pay /
surgeon for performing an operation on hcl
person, At the date of the last advance
Mr.. and Mrs. Hartman executed to him {
deed to the property, absolute upon its
face, and received from him dcfeasance!
by which he obligated himself to reconyey
to them upon payment by day named OF
the whole amount due him. The deed was
properly executed and acknowledged, save
that the officer taking the acknowledgment
failed at the time to sign the certificate
that the wife had acknowledged it, though
the certificate was written out and append
ed. 1t was recorded and ten months
afterwards the officer discovering his omis-
| of ,a IA nt M
upon her then admission that she had APP
peared before him and acknowledged ii
ten months previously appended an addi-
tional certificate to that effect. No rights
of third pUrties had interviewed. No por-
ton of the money due having been paid,
this bill is filed to enforce payment by a
subsection of the property conveyed.
HE. Slmrall and II. Ii. Thompson for
appellant.
Sessions and Cassidy for appellee.
CHALMERS, j.,
Held
1. The acknowledgment of married
woman, is an essential part of convey
ance executed by her. If wanting it can
not be supplied; if defective, it cannot be
amended; and if properly authenticated,
it cannot be gainsaid nor questioned, save
for fraud.
9. The officer must sign the certificate.
and if he fails to do so, the instrument can
not be recorded; or if recorded, will not
constitute notice to third persons.
3. The certificate is not required by the
statute to be made or signed in the pres
ence of the woman. If an hour or day
elapses after she acknowledges it and
before the officer signs the certificate, it
ial act has been performed when she has
made and the officer has received her
separate acknowledgement.
/. We conclude therefor that the second
mortgage 1.-THE absolute decd was properly
executed by the wife, and that it protects
all the valid debts due by her. The
Chancellor decreed that the corpus of the
wife's estate was bound for the taxes paid
and the money loaned to pay the surgeon,
and treating the first loan of $3.50 as Il debt
of the husband, for which the wife had
pledged her separate estate, he held that it
bound the income of the property. We
approve his ruling as to the taxes and the
surgeons bill. but with reference to the
$3.50 loan, this difficulty is presented The
complainant charges i'll his bill that the
money was loaned solely and exclusively
property and for the purchase of family
supplies. The proof shows that it was
used by the husband in his business. The
contract of married woman for borrowed
money, in this State is void, and the lender
can recover against her only by species
of subrogation by showing that the money
was used for the purchase of such things
US those for which she is authorized to con-
by tne usSirancUs gIvos. i:s.s;, tpai lfj
case both in his pleadings and proof, solely
upon the allegation that it was the debt of
the wife, for which the corpus of her estate
was liable. He neither AYERS that the hus-
band signed the note with her, nor does he
produce the note itself. If he signed it, he
thereby made it his debt, and the mortgage
by the wife would bind the income of the
property. Complainant having in his
averred the debt to be solely that
of the wife, and having failed by produc-
ton of the note, to show Il liability upon |
the part of the husband, cannot, without |
be allowed to recover upon a |
different theory.
5. 1t is urged by defendant that before
the bringing of this suit, she rendered the
full amount due by her, and that while
this does not acquft her of the personal
obligation, it does discharge and vacate the
mortgage upon her property. 1t has been
settled from the earliest times that per-
ect and technical legal tender will dis
'harge all mortgages, pawns, pledges and
collateral securities, though the personal
obligation to pay the debt remains, and it
las been held that it will have this effect
hough not continuous nor brought into
'ourt with the plea, The ancient and per-
laps the general rule is that in order to
lave this effect it must be made upon the
cry day that the debt becomes due, known
II this connection as the law day.
6. The pretended tender in this ease was
lot valid. 1t was mere proposition or
ffer by Mrs. Ii irman's attorney to pay
What was due if all usurious interest was
tricken from the mortgage. No money
vas produced, nor is it shown that any
vas present, 1t was not proposed to pay
then and there, nor was anything said as
D when it would be paid. The offer did (
OF amount to such tender as would stop ,
interest. much less to one sufficient to dis
barge the mortgage.
Reversed and remanded with leave to l
Dmplainant to amend.