The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-02-05

has reference to such contracts Of suretyship as
the wife but for the restrictions in that section,
might herself make, and not to such contracts
as the second section enables her to make jointly
with her husband. He and she, as owners of
the entirety of the land, could only by acting to
gether, mortgage the land, or her interest i'll it.
Therefore there could be no contract of surety
ship made by the wife in such case. 1t would be
an abuse of language to say that by the eXecu
ton of the mortgage in the case referred to, the
wife entered into a contract of suretyshlp. 1t
has been held, and the doctrine is too well estab
liShed to admit of question, that when married
woman joins with her husband in the execution
of mortgage on her separate estate to Sc
cure his debt the land so mortgaged
will be regarded in equity as surety for the
debt. But it has also been held that when the
wife joins with her husband inexecuting mort
gage on his real estate to secure his debt, her
contingent and inchOate interest is not to be re-
garded as surety for the debt. (Hawley vs.;
Bridgeford, Paige, 200; Jenness VS.. Cutter Il
Kan, 500)
If it is true as seems to have been
held in the case under consideration, at
least in effect, that when married
woman joins her husband in amortgage on lands
in which she has an interest only, and does not
separately own, to secure his debt, that interest
is to be regarded as surety for the husband S
debt, it must follow that "a mortgage executed by
husband and wife on his real estate to secure his
debt is void as to the wife; for, if by executing
the mortgage in the case decided she contracts
as sur1ty for her husband, so IN executing a
mortgage on his real estate to secure his debt
she must enter into contract of sTretyshlp,
and, as by the statute she has power tie enter
into contract of suretyship, it would be void as
to her
If the principle decided in the case of Dodge
VS.. KintZy is carried to its logical conclusion it
will be far-reachng in its consequences, and
give to the act of 1881 an effect and meaning
never dreamed of by its authors. 1t will affect
and greatly impair almost all real estate secul1-
ties executed since the law took effect, seriously
embarrass the business of the country, and pro
duce in most cases positive wrong and injustice
The decision of the court is, such always
should be- entitled to great respect; but 1T is
quite possible that in this case the court has
fallen into an error. 1t seems to me that the
execution of such a mortgage is not a contract of
suretyship within the meaning Of section 3ll9 of
the code, and that the mortgage should have
been held valid Indeed, itseems to me that, since
the act of 1881 abolishes all disabilities of mar
ried women, except in that act specified and
expressly repeats all acts and parts of acts in
conflict with its provisions; and, at the same
time provides that married woman may mort
gage her real estate by joining with her hus-
band, that the only contract, even of suretyshlp
which she is prohibited from making, is "A per
sonal contract. To give this act any other con
struction would be to hold that the Legislature
intended to restrict rather than enlarge the
rights and powers of married women. This
would be contrary to the spirit and tendency Of
the age in which we live Lien"
Fort WAYNE.