44 Md. 108 | Md. | 1876
delivered the opinion of the Court.
The hill of complaint in this case was filed for an injunction to restrain the appellee, Clarke, from selling under a power in a mortgage, certain real estate, and to have the mortgage declared void on the alleged grounds that the mortgage had been obtained from the appellant, Martha S. Comegys, by fraud and that it was executed by her without any consideration. An injunction was granted, and answers were filed by the defendants Clarke and ¥m. H. Comegys, the first denying the fraud and deceit, and the latter admitting the allegations of the hill and consenting to a decree. Evidence was taken under commissions, exceptions to some of which were taken by each of the parties, and upon final hearing, an order was passed dissolving the injunction, and from that order this appeal is taken.
We have carefully examined the evidence and are of opinion that it does not sustain the charge of fraud and deceit, made by the hill. The proof shows that William
But it was also contended that the evidence of the consideration for the mortgage is different from the consideration named in the mortgage itself, and that the evidence is, therefore, inadmissible. The mortgage states the consideration to be two thousand dollars “cash in hand paid,” while the evidence shows that it was a note under seal for two thousand dollars, a pre-existing debt due by William H. Comegys, to the appellee Clarke. The consideration proved is not different in character from that stated in the mortgage. The proof was therefore admissible. Clagett & Hill vs. Hall, 9 G. & J., 91; Cole, Trustee vs. Albers & Runge, 1 Gill, 423.
It was also urged in the appellant’s brief that there was no consideration passing to the appellant for the mortgage of' her laud, and therefore, it cannot be enforced as against her property. It is perfectly competent for a wife to give a mortgage upon her property to secure the payment of her husband’s debt, and a mortgage executed by her for this purpose cannot be said to be without consideration.
Several exceptions to evidence were taken by the solicitors of the respective parties, which we do not consider it material to notice ; for whether the exceptions be sustained or overruled ; whether the evidence be admitted or rejected, the result of the case cannot be thereby affected.
The order of the Circuit Court dissolving the injunction will he affirmed.'
Order affirmed.