Pike v. Clark , 40 N.H. 9 ( 1859 )

Bellows, J.

On the 24th of Eebruary, 1845, the plaintiff acquired title to the farm in question, and on the same day mortgaged it back, to secure the payment of the purchase money. Her husband was then in the insane asylum. The case does not find that the farm was conveyed to her for her sole and separate use, and therefore her husband had a right to the use of the farm; but by the agreement of parties the sole question is, whether the defendants acquired an interest in the farm by the sale of the equity of redemption. Judgment was obtained against the plaintiff in Eebruary, 1857, and that must be treated as valid until reversed — it having been rendered in this State, as it would seem, and nothing stated that tends to impeach it. It then may be assumed, for the purposes of this case, that the judgment was valid, and, being so, the creditors might levy their execution upon any property of hers.

The first question then is, have they made a good levy ? In some form, it would seem, her interest in the land might be taken upon this execution. But, to uphold the proceedings in this case, a valid mortgage was necessary. In Murray v. Emmons, 19 N. H. 483, it was held by Woods, J., that a lease by a married woman of land held in her own right is void. In that case the land was not held by her to her sole and separate use, but in her right, as in this ease; and at the time of the lease her husband was absent, and had been for twenty-five years, having gone to parts unknown. So in Matthews v. Puffer, 19 N. H. 448, Woods, J., holds the deed of a married woman to be void; “ a mere nullity, as respects its power to transfer any title, interest or possession. It was merely void, and it required neither entry, plea, or other act, on the part of the party executing it, or others whose rights might be concluded by its terms, to avoid it.” In Coffin v. Morrill, 22 N. H. 852, where land was conveyed to the wife, and a mortgage was made by herself and husband at the same time, it would seem, to secure the purchase money, Bell, J., says, “ The deed of the wife being inoperative, and her note as such merely void, the deed must be signed by the husband, to bind her estate.” To the same effect are Ela v. Card, 2 N. H. 175, and cases there cited.

The mortgage must then be regarded as merely void, and not voidable. Nor do the provisions of Revised Statutes (ch. 149, sec. 1), affect the question. By the provisions of that law a married woman, deserted by her husband, has power to hold, in her own right and to her separate use, any property acquired by her, by descent, legacy or otherwise, and to dispose of the same without his interference. But as the case does not find a desertion by him until after the mortgage was made, the question raised is simply, whether the deed of a married woman under ordinary circumstances has any validity whatever, or is merely void. And this question we consider to be settled by repeated decisions in this State.

We therefore hold that the mortgage of the wife was void, and that the sale upon the defendants’ execution passed no title or interest in the farm.

In accordance with the provisions of the case, there must be judgment for the plaintiff, for the value of the property converted; the amount to be assessed by the court, at the next trial term in this county.