119 Ind. 3 | Ind. | 1889
The following facts present the question for decision : Mattie Long, wife of James Long, being the owner in her own right of a certain lot in the town of Fowler, in Benton county, executed a deed, in which her busbaud joined, by which she conveyed the lot to John Dempsey for the nominal consideration of fifteen hundred dollars. Dempsey, on the same day, for a like consideration, conveyed the. property to James Long, husband of Mattie Long. There
The foregoing facts appeared in a suit by Crosson to foreclose his mortgage taken as above. Upon the facts thus summarized, the court below gave judgment of foreclosure against both the mortgagors. The wife prosecutes this appeal, and on her behalf it is insisted that the facts show nothing more than an indirect attempt to do that which is prohibited by section 5119, R. S. 1881, which declares, in . effect, that a married woman shall not, in any manner, enter into any contract of suretyship, and that all such contracts as to her shall be void.
We fully concur in the view that the statute which removes the disabilities of married women, to the extent that
Conformable to the maxim which declares that whatever is prohibited by law to be done directly can not legally be effected by an indirect and circuitous contrivance (Broom Legal Max. 432), it was held in McCormick, etc., Co. v. Scovell, supra, that where a husband and wife joined in conveying real estate owned by them as tenants by entireties, to a third person, the latter conveying to the husband so as to enable him to mortgage the property to secure an antecedent debt owing by him to another, who knew of the purpose for which the several transfers were made, the deeds and mortgage constituted substantially one transaction and were void as an evasion of the statute which prohibits a married woman from entering into a contract of suretyship. Whatever device may be resorted to for the purpose of evading the statute, if the person seeking to enforce the contract knew of, or participated in, the design, or purposely remained ignorant, courts will deal with the transaction according to its substance, regardless of the form in which it may have been disguised. In the present case the title was transferred from the wife to her husband more than six months before the mortgage in suit was taken. It has remained in the hus
Evidence was admitted to show that a building formerly situate on the lot in controversy had been destroyed by fire, and that the husband had made proof of the loss and had collected seven hundred dollars insurance upon a policy theretofore taken on the building in his name. There was no prejudicial error in this ruling. The most that can be said of it is that the evidence was immaterial. There was no error.
The judgment is affirmed, with costs.