101 Tenn. 490 | Tenn. | 1898
Sinclair and wife borrowed $1,200 from the defendant association, which was received by the wife and applied principally to pay off a vendor’s lien upon real estate, the title to which was in her. They executed a mortgage upon the same lot to the defendant association, to secure the amount borrowed. In this instrument Mrs. Sinclair acknowledged the receipt by her of the amount borrowed. The acknowledgment of the married woman to this mortgage 'Was defective in that it omitted from the certificate the words ‘ ‘ without compulsion or constraint from her husband and for the purposes therein expressed.” The words actually used in the certificate are that ‘ ‘ she executed said mortgage freely, voluntarily, and understandingly, and without fear or compulsion from any person.”
We are of opinion the words used are not equivalent to those prescribed by statute, and constitute a fatal variance with those prescribed by the statute. And the instrument is, therefore, void as to the married woman. Ellett v. Richardson, 9 Bax., 293; Henderson v. Rice, 1 Cold., 223. However, having received the loan of $1,200 upon this defective instrument, she cannot disaffirm the conveyance and have it set aside, as she seeks to do,
This is decisive of the case, and reaches the same result as was reached by the Court of Chancery Appeals, but by a different route. That Court found that Sinclair and wife, after they made .the mortgage to the association, sold the land to Cox and wife, they paying to Sinclair and wife $200 in cash and also to pay the legal liens on the property.
The Court .of Chancery Appeals found, further, that, when Cox and wife bought the land and took the conveyance, they did it with the intention of contesting the association’s right to enforce its mortgage, and thus obtain the lot free of any claim of the association, and this was such a fraud as would have vitiated the deed of Sinclair and wife to Cox and wife if it had been availed of as soon as discovered, but that Sinclair and wife lost their right to disaffirm this deed to Cox and wife by their laches in setting up the fraud. In the meantime, under some sort of an arrangement, Cox and wife adjusted their differences, and the association bought back the lot from Cox and wife and took a convey-
Sinclair and wife will have four months to redeem the property from this date, by the payment of the $1,200 and interest, and, if not so paid and redeemed, the Clerk of the Court below will sell the lot upon a credit of six months, and free from any right to redeem, and the proceeds, after payment of costs and expenses, will be applied to the debt of the association, and any balance will be paid to Mrs. Sinclair, and the cause will be remanded for this purpose. The costs of the cause will be borne, three-fourths by the association and one-fourth by Sinclair and wife, and, if not sooner or otherwise paid, will be reserved out of the proceeds of sale as to the association’s share, and out of the surplus as to Mrs. Sinclair’s, but this is not to prevent any earlier collection by the usual process of execution. We do not find it necessary to pass upon the different matters adjudicated by the Court of Chancery Appeals further than as herein indicated.
It may be objected that there is no finding of