Dunning v. Pike , 46 Me. 461 ( 1859 )

The opinion of the Court was drawn up by

Davis, J.

This is a real action to recover certain premises situated in Frankfort, in the county of Waldo, formerly owned by George A. Pierce. In 1855, he failed, and assigned all his property to Robert Treat & Co. The demandant, acting for Theodosia Dunning, held certain notes against Pierce, and a prior mortgage upon the premises, which, by mistake, had been recorded in the county of Penobscot, instead of Waldo, and was therefore void as against Treat & Co. But subsequently, by an arrangement made between all the parties interested, Treat & Co. conveyed the premises to the tenant, Nancy S. Pike, who, in consideration therefor, gave her own notes to the demandant, in lieu of the notes held by him against Pierce, with a mortgage of the premises to secure the payment of the notes. The controversy arises from the.fact that the tenant was then a married woman, having a husband living at the time. The demandant claims under the mortgage; and it is insisted for the tenant that the notes and the mortgage are void.

Treat & Co. conveyed to the tenant, September 12, 1856; and she conveyed to the demandant, September 21st, 1857. But the case finds that the latter conveyance was the consideration of the former, and that the whole transaction was in execution of a prior mutual arrangement. It therefore constituted one transaction only, the same as if the parties to both the deeds had been the same, and both had been made and delivered at the same time. If we hold that the mortgage of the tenant is void, the conveyance of Treat & Co. to her must also be held to be void, and all the parties be remitted to their former rights.

Whatever change was made in revising the statutes of this State in 1857, the rights or powers of married women were not materially enlarged. They may convey real estate owned by them. Nor do we express the opinion that they may not mortgage such estate to secure debts contracted by them for which they are legally liable. But neither the present, nor any former statutes, were intended to confer upon a married woman the power to purchase real estate in her own name, on credit, and give her own promissory notes in payment, with a mortgage of the property as collateral security. Newbegin v. Langley, 39 Maine, 200.

We are of the opinion that Nancy S. Pike, being a married woman, with a husband then living, had no power to become a party to such an arrangement. The notes and mortgage given by her, and the deed given to her by Treat & Co., were all void.

But the demandant can recover only upon the strength of his own title. The tenant has nd title which could avail her against the original mortgage, given by Pierce. As this was given to Theodosia Dunniug, it cannot avail the demandant in this suit. Judgment must be entered for the tenant.

In the suit between the same parties, in the county of Penobscot, upon one of the mortgage notes, a nonsuit- must be entered.

Tenney, C. J., and Appleton, Cutting, May and Kent, J. J., concurred.