Opinion
12-14-1887
CONWAY and others v. WILSON and others.
J. W. Morgan and E. A. Armstrong, for complainants. J. W. Wartman and J. J. Crandall, for defendants.
Bill to foreclose a mortgage.
J. W. Morgan and E. A. Armstrong, for complainants. J. W. Wartman and J. J. Crandall, for defendants.
BIRD, V. C. This bill is filed to foreclose a mortgage given to secure the payment of a bond made by Wilson and his wife. The lands mortgaged are the lands of the wife; but the debt is the debt of the husband. The allegation of the bill is that the defendants, being jointly indebted, gave their joint bond to secure the payment of the debt, and at the same time made and executed the mortgage to secure the payment of the said bond. The answer denies that the debt was joint, and insists that it was the debt of the husband alone, but admits the execution of the mortgage upon the lands of the wifeto secure the debt. All the resistance to a decree comes from what is said to be a false allegation in the bill, to-wit, that the debt was the debt of the husband and wife, when it was not her debt at all, and that, because that allegation is untrue, the complainant cannot recover; is not entitled to any decree; it being seriously insisted and elaborately urged that the complainant's bill ought to be dismissed. It would strike me as exceedingly harsh, indeed, for this court to be influenced by such an argument.
The defendants say: "Yes, the mortgage is a legal one. The consideration for which it is given is recognized in every court; but, because the law does not permit the wife to bind herself personally to pay the obligations of the husband, which she has attempted to do in this case by joining with him in the bond, therefore the mortgage itself must go for naught." I can find no principle of law that requires me to adopt any such method of reasoning; and, as no other questions have been raised in the case, I shall advise a decree for the complainants, with costs.