50 Neb. 656 | Neb. | 1897
The defendants are wife and husband. The defendant husband borrowed of plaintiff, through his agent, J. A. Cline, the sum of $2,500, which loan was evidenced by promissory notes signed by both husband and wife, and the payment thereof was secured by a real estate mort
It is urged that the mortgage is invalid, because the execution thereof Avas not Avitnessed by a competent person, and that the notary who certified to the acknowledgment was disqualified to act by reason of his being the agent of the lender. The sole Avitness to the execution of the instrument was the said J. A. Cline, and he was likewise the officer who took the acknowledgment. Whether the fact that Mr. Cline was the agent of the mortgagee in making the loan is sufficient to render him incompetent to either witness the mortgage or take the acknowledgment it is unnecessary to decide, although it would seem that the decisions of this court would justify the conclusion that Mr. Cline did not possess such an interest in the subject of the instrument as to disqualify him from signing as a witness or taking the acknowledgment of the mortgagors. (See Child v. Baker, 24 Neb., 188; Horbach v. Tyrrell, 48 Neb., 514; Havemeyer v. Dahn, 48 Neb., 536.) It is neither alleged nor proved that the mortgaged premises were at the time occupied by the defendants as a homestead. The evidence shows the opposite to be the fact; therefore the acknowledgment of the mortgage by them before an officer empowered by law so to do was not essential to the validity of the instrument. It was valid as between the parties though it had never been witnessed or acknowledged. This doctrine has been too frequently asserted by this court to require more than the citation of the cases in which it has been announced. (Burbank v. Ellis, 7 Neb., 156; Kittle v. St. John, 10 Neb., 605; Green v. Gross, 12 Neb., 123; Harrison v.
It remains to be considered whether the plea of coverture is a good defense against this mortgage. Stated differently, is a wife’s separate estate liable for the payment of a mortgage executed by her to secure the payment of a loan obtained by her husband for his own use and benefit, when no part of the money thus procured was expended in and about her separate estate, trade, or business? The statute of this state relative to married women has been frequently before this court for consideration, but it is unnecessary for us to review the decisions on the subject at this time. Appellee strenuously insists that the statute does not confer upon a married woman an unrestricted power to enter into contracts, but the right to do so is confined to those made with reference to and upon the faith and credit of her separate property, trade, or business. Counsel for appellant do not controvert the soundness of the rule just stated, but they insist that a contract is not made in reference to a married woman’s separate estate, trade, or business unless such contract related to or concerned the same, and that the consideration passed to her for the benefit of her separate property, trade, or business. If the question was an open one in this state the writer would be inclined to adopt that as the proper construction of the statute, but the
Affirmed.