used to improve her separate estate, is void at law.1 And where she borrows money to make unnecessary repairs, the lender is not favored.2 § 152. Mortgage of Wife's Lands. The husband cannot mortgage his wife's separate property for his individual debt; 3 for it is a general principle that the wife's separate property cannot be made liable for the debts of her husband or others without her assent.4 But a mortgage given by a married woman upon her separate estate, acknowledged in conformity with the statute, and with the joinder of the husband, is a valid security and capable of enforcement; not alone where she had it mortgaged to secure her own or her husband's debt, but also, in a case free from fraud or undue influence, where it was mortgaged for the benefit of a third person.5 But in all such cases the wife's rights as surety are carefully guarded; and the husband cannot pervert the security to her detriment, nor bind her by his own agreement for extension or discharge. And, on the other hand, where she is a mortgagee in her own right, the husband cannot alone receive payment and satisfaction and discharge the mortgage. The creditor's agreement of defeasance accompanying the transaction, or covenants on his part, must be faithfully observed; and as to other security her rights are the usual ones.9 It must be re 90. 1 Williams v. Wilbur, 67 Ind. 42. 8 gage to secure the purchase-money of land, see Merser v. Smyth, 58 N. H. 298; Brewer v. Maurer, 38 Ohio St. 3 Patterson v. Flanagan, 1 Ala. Ş. C. 543. See § 150 as to husband's joinder. 427. 4 Hutchins v. Colby, 43 N. H. 159; Yale v. Dederer, 18 N. Y. 265; Johnson v. Runyon, 21 Ind. 115. 5 See Schouler, Hus. & Wife, § 274, and cases cited; Danbert v. Eckert, 94 Penn. St. 255; 112 Penn. St. 284; 18 Fla. 761; Stafford Bank v. Underwood, 54 Conn. 2; 45 Ark. 147; 32 Fla. 481. All persons taking such a mortgage are bound to ascertain that there has been no fraud on the wife in inducing the mortgage. 98 Penn. St. 561; Marchand. Griffon, 140 U. S. 516. But see 89 Ga. 181. 131 Mass. 192. And see Hall v. Tay, 6 She is not surety when joint owner with her husband. 89 Ga. 306. 7 McKinney v. Hamilton, 51 Penn. St. 63. 8 Lomax v. Smyth, 50 Iowa, 223. 9 Wilcox v. Todd, 64 Mo. 388. Future advances to the husband alone under such mortgage to the creditor for security and his bond to reconvey upon payment of an existing debt, cannot be set up against the wife. 64 Vt. 616. And see 142 N. Y. 290. But the wife cannot question acts of her husband within scope of the transaction. 61 Vt. 69. husband, or in some States her sole note or sole contract, for lumber and materials to be used thereon. It is the declared rule of many States that the husband cannot of his own act, and without his wife's consent, subject the latter's separate land to debts for improvements, or subject it to a mechanic's lien.1 But the mechanic's statutory right of lien generally extends to a married woman's lands where she contracted in person or by agent, and perhaps, too, where the contract was for the benefit of the land. A husband's bona fide investment of money in improvements upon his wife's estate cannot be subjected to his own demands nor to satisfaction of the claims of his creditors, except on the usual principles. And recent cases rule that where husband and wife occupy together the wife's land, the wife's possession must be respected as the husband's would be of his own property in the absence of a title differently recorded.* Apart from permanent improvements, a married woman's real estate may well be rendered liable for repairs made to her separate estate at her own request, and as necessary for its due preservation and enjoyment. And where a wife buys land, gives her notes in payment, and enters with her husband and makes improvements, the vendor's lien for his purchase-money is favored at this day to the full extent.5 Independently, however, of enabling statutes, the written contract of a married woman, by which she acknowledges an indebtedness for materials and labor 1 Briggs v. Titus, 7 R. I. 441; Spinning v. Blackburn, 13 Ohio St. 131; 62 Conn. 75; 145 Ill. 389; 90 Ky. 380; Schouler, Hus. & Wife, § 272. 2 Vail v. Meyer, 71 Ind. 159; Wood. ward v. Wilson, 68 Penn. St. 208; 153 Penn. St. 208; Anderson v. Armstead, 69 Ill. 452; 25 Fla. 118; Marsh . Alford, 5 Bush, 392; Schouler, IIus. & Wife, § 272, and cases cited. A husband acting as his wife's agent in purchasing materials and supervising the erection of buildings on her land cannot bind her by his adjustment of the amount due, against her right to question and ascertain the facts. Parker v. Collins, 127 N. Y. 185. 8 Improvements thus made are re garded as presumably a post-nuptial gift to her. 92 Ala. 146, 152. And liable to his existing debts. Humphrey v. Spencer, 36 W. Va. 11; § 185, post; Connecticut Society's Appeal, 61 Conn. 465. But circumstances may repel such presumption. 61 Conn. 465. As to the husband's own claim for improvements, see Holmes v. Waldron, 85 Me. 312; §§ 184, 189, 194. 4 Brown v. Carey, 149 Penn. St. 134. Hence the right to insure the premises is that of the wife only. Kavanaugh v. Barber, 131 N. Y. 211. As to damage for injuries, see 152 Mass. 7; 135 N. Y. 201. 5 Bedford v. Burton, 106 U. S. 338. used to improve her separate estate, is void at law.1 And where she borrows money to make unnecessary repairs, the lender is not favored.2 § 152. Mortgage of Wife's Lands. The husband cannot mortgage his wife's separate property for his individual debt; 3 for it is a general principle that the wife's separate property cannot be made liable for the debts of her husband or others without her assent, But a mortgage given by a married woman upon her separate estate, acknowledged in conformity with the statute, and with the joinder of the husband, is a valid security and capable of enforcement; not alone where she had it mortgaged to secure her own or her husband's debt, but also, in a case free from fraud or undue influence, where it was mortgaged for the benefit of a third person.5 But in all such cases the wife's rights as surety are carefully guarded; and the husband cannot pervert the security to her detriment, nor bind her by his own agreement for extension or discharge. And, on the other hand, where she is a mortgagee in her own right, the husband cannot alone receive payment and satisfaction and discharge the mortgage. The creditor's agreement of defeasance accompanying the transaction, or covenants on his part, must be faithfully observed; 8 and as to other security her rights are the usual ones.9 It must be re 90. 1 Williams v. Wilbur, 67 Ind. 42. gage to secure the purchase-money of land, see Merser v. Smyth, 58 N. H. 298; Brewer v. Maurer, 38 Ohio St. 3 Patterson v. Flanagan, 1 Ala. Ș. C. 543. See § 150 as to husband's joinder. 427. Hutchins v. Colby, 43 N. H. 159; Yale v. Dederer, 18 N. Y. 265; Johnson v. Runyon, 21 Ind. 115. 5 See Schouler, Hus. & Wife, § 274, and cases cited; Danbert v. Eckert, 94 Penn. St. 255; 112 Penn. St. 284; 18 Fla. 761; Stafford Bank v. Underwood, 54 Conn. 2; 45 Ark. 147; 32 Fla. 481. All persons taking such a mortgage are bound to ascertain that there has been no fraud on the wife in inducing the mortgage. 98 Penn. St. 561; Marchand ». Griffon, 140 U. S. 516. But And see Hall v. Tay, As to the wife's mort see 89 Ga. 181. 131 Mass. 192. 6 She is not surety when joint owner with her husband. 89 Ga. 306. 7 McKinney v. Hamilton, 51 Penn. St. 63. 8 Lomax v. Smyth, 50 Iowa, 223. 9 Wilcox v. Todd, 64 Mo. 388. Future advances to the husband alone under such mortgage to the creditor for security and his bond to reconvey upon payment of an existing debt, cannot be set up against the wife. 64 Vt. 616. And see 142 N. Y. 290. But the wife cannot question acts of her husband within scope of the transaction. 61 Vt. 69. membered that in certain States a conservative policy is still pursued, so as to prohibit the wife's mortgage to a greater or less extent, and with reference, perhaps, to the beneficial nature of the consideration.1 § 153. Wife's Separate Property; Husband as Managing Agent. The undoubted right of the wife, on general principles, to treat her husband as the trustee or agent of her separate property, has given rise, under the married women's acts, to perplexing questions as between herself and his creditors. In New York, her privileges in this respect are carried very far; for she may employ her husband as her managing agent to control her property, without subjecting it to the claim of his creditors; the application of an indefinite portion of the income to his support does not impair her title to the property; and neither he nor his creditors will acquire an interest in the property through his services thus rendered. She may give him a power of attorney and require him to pursue its terms carefully. In Illinois, too, it is well recognized that the wife may make her husband her agent to collect debts due her, to receive from others the income of her estate, and, like other agents, to manage and control her separate property in her name, and she may employ him as clerk or salesman in her business.5 Such, too, is the rule developing in certain other States, to the practical disadvantage of the husband's creditors, as well as of the wife's protection against her husband.6 The husband's agency, whether created under suspicious circumstances or not, as regards the public, is, like other agencies, a matter of fact for legal ascertainment as to existence or scope 1 Bowers v. Van Winkle, 41 Ind. 432; Lippincott v. Mitchell, 91 U. S. 767. See further, on this subject, Schouler, Hus. & Wife, §§ 276, 277; 92 Ky. 566. In some codes a married woman is expressly forbidden to become a surety in any manner; and her mortgage to secure her husband's debt is consequently void. 103 Ind. 71, 213. See also 63 N. H. 195. See Sperry v. Dickinson, 82 Ind. 132; 57 Mich. 247; 18 Fla. 342; 85 Ind. 108, as to mortgaging on a void note. 2 Buckley v. Wells, 33 N. Y. 518; Knapp v. Smith, 27 N. Y. 277. 8 Nash v. Mitchell, 71 N. Y. 199; 41 Kans. 236. 4 Patten v. Patten, 75 Ill. 446. 5 98 Ill. 38, 47; 139 Ill. 450; § 168. 6 Aldridge v. Muirhead, 101 U. S. 397; Coleman v. Semmes, 56 Miss. 321; 15 Vroom, 105; Parker v. Bates, 29 Kan. 597; Wells v. Smith, 54 Ga. 262. As to delegation of his authority by the husband, see 59 Tex. 240. upon all the proof. The courts in Illinois go so far as to hold that the husband's dealings with his wife's separate property will now be presumed, in the absence of proof to the contrary, to be in the character of agent, even as to the proceeds and income thereof; and hence rendering him liable to account like other agents, with allowance of his reasonable compensation, but so as to require him to establish any claim he may make of a gift or legal transfer to him, by due proof that the wife so assented and understood; in short, that the common-law rights of the husband to the wife's property are swept away. But in such a presumption certain other States by no means concur.2 Proof, however, that a husband acted as special agent for his wife in a few instances does not prove that he was her general or universal agent; and yet the issue of his beneficial regard for her gives a material bias to the decisions, so that whenever he has been acting for her, and his action naturally tends to accomplish her known wishes in the transaction, little proof is needed to warrant the inference that his action was authorized by her. § 154. Husband as Managing Agent; Services, &c.; Husband's Creditors. It seems to be the well-settled American doctrine that, by working upon the wife's lands, the husband acquires no beneficial interest therein which can be enforced in equity on behalf either of himself or his creditors, in absence of a definite agreement for compensation; unless, possibly, it could be shown to exceed in value the cost of supporting the whole family. The crops cannot be attached by his creditors. 1 Patten v. Patten, 75 Ill. 446, 141 Ill. 226; 149 Penn. St. 228. 2 Eystra v. Capelle, 61 Mo. 578. See further, Aldridge v. Muirhead, 101 U. S. 397; Paine v. Farr, 118 Mass. 74; 58 N. H. 185; 62 Iowa, 395; Martin v. Suber, 39 S. C. 525. The husband's agency is considered at length in Schouler, Hus. & Wife, §§ 277-280. A husband's threat to commit suicide is not duress of the wife. 43 N. J. L. 451. A power of attorney from wife to husband for conveyance or other real estate transactions is broadly upheld under some local statutes. 41 Kan. 236. But see aliter, 45 Minn. 515; unless she retains the advantage and thus adopts his action. 47 Minn. 491; § 157. 8 Franklin Bank v. Taylor, 131 Ill. 377; 151 Mass. 11; 80 Iowa, 246. 4 Simes v. Rockwell, 156 Mass. 372. 5 Buckley v. Wells, 33 N. Y. 518; Webster v. Hildreth, 33 Vt. 457; Cheuvete v. Mason, 4 Greene (Iowa), 231; Betts v. Betts, 18 Ala. 787; Commonwealth v. Fletcher, 6 Bush, 171. McIntyre v. Knowlton, 6 Allen, 565; Lewis v. Johns, 24 Cal. 98; Allen v. Hightower, 21 Ark. 316. |