Shepard v. Bestar , 271 Mich. 219 ( 1935 )

Defendant, a married woman, owned business property in the city of Benton Harbor, incumbered by mortgage. November 1, 1929, defendant and her husband executed a mortgage on the property to the Commercial National Bank Trust Company of St. Joseph, for the sum of $17,000, accompanied by 34 notes for $500 each, signed by her alone. The mortgage and notes were given to take up the prior incumbrance. Plaintiff, holder of several of the notes, brought this suit and had recovery thereon. Defendant, by appeal, asserts immunity by reason of coverture, and claims it was agreed by the bank that her husband's signature would be obtained upon the notes and such was not done.

The mortgage was upon her separate estate and valid, to relieve her property from a former mortgage thereon and the notes were for the same purpose and bore no relation other than to her separate estate. The fact that the previous mortgage avails were given by her to her husband did not clothe her, in this instance, with any of the immunity of coverture.

There is no rule of law in this State preventing a married woman from executing her note or notes, secured by mortgage on real estate, of which she is the sole owner in fee, and letting her husband use the money. Such a contract is her own, bears relation to her separate estate, is within her power and not rendered otherwise if the lender is aware of the purpose. It does not constitute the wife a surety for the debts and obligations of the husband.

The mortgage would not be subject to any defense here offered. Peoples Wayne County Bank v. Wesolowska, 256 Mich. 45. The notes, accompanying the mortgage, carry the same freedom from the grounds of attack here made. The loan for which the mortgage and notes were given was for the benefit of her sole property, and she could deal therewith as though unmarried.

The judgment is affirmed, with costs to plaintiff.

POTTER, C.J., and NELSON SHARPE, NORTH, FEAD, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.