Ludlow v. Colt

41 Ind. App. 138 | Ind. Ct. App. | 1908

Roby, C. J.

Suit by appellant to foreclose a mortgage upon land in. Dearborn county, owned by appellee, Carrie G. Colt, who answered that she was at the time of the execution of said mortgage a married woman, the wife of her codefendant, Robert M. Colt, who departed life during the suit, and that she executed the mortgage and notes secured thereby as surety for said husband.

The court found the facts specially and stated as conclusions of law that the contract sued upon was one of suretyship by said Carrie G-. Colt, that she was not estopped from asserting such suretyship, and that appellant was not entitled to recover as against her. Relevant statutory provisions are as follows:

“All the legal disabilities of married women to make contracts are hereby abolished, except as herein otherwise provided.” §7851 Burns 1908, §5115 R. S. 1881.

“A married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner; and such contract, as to her, shall be void.” §7855 Burns 1908, §5119 R. S. 1881.

‘ ‘ That any married woman who shall hereafter execute her promissory note * # * and deliver the same to any person * * * for the purpose of securing a loan, and such person * * * shall make such loan and shall' pay the proceeds thereof to such married woman * * * by check * * * drawn payable to her order, and such married woman shall state under oath in writing the purpose for which such borrowed money is to be used, and if such affidavit shall show the same to be for her own separate use or the betterment of her * ’s * separate business, she shall not be permitted thereafter to claim that such loan was made for the use or benefit of any person other than herself.” Acts 1903, p. 394, §7856 Burns 1908.

1. Prior to the act of 1903, supra, the conclusion reached by the court would have -been a correct one, there not being sufficient facts found to create an estoppel'against said appellee. Davis v. Neighbors (1905), 34 Ind. App. 441; Wredman v. Falls City Sav., etc., Assn. (1907), 40 Ind. App. 478.

2. Among other facts the court found," in substance,, that on April 6, 1905, said appellee executed three promissory notes for $1,000 each, her husband not joining therein; that on said day she executed a mortgage upon the land described to secure the payment' of said notes, her husband joining in said mortgage; that she also on said day as a part of said transaction, and as an inducement to the making of said loan by appellant, stated under oath in writing the purpose for which such money was to be used, and that said affidavit showed the same was to be used for the betterment of her property; that said notes evidenced a loan of $3,000 made on said day by appellant, and that said sum was paid by d check for $3,000 drawn by appellant upon a bank named and payable to the order of Carrie G-. Colt; that said check was delivered to and subsequently indorsed by said payee. These facts show that Mrs. Colt has no defense to the suit on the ground of suretyship. Her liability does not depend upon any estoppel, but upon her own contract— the notes and mortgage in suit. She does not come within the exception to §7851 Burns 1908, §5115 R. S. 1881, which is made by §7855 Burns 1908, §5119 R. S. 1881.

The truth or falsity of the facts stated in said affidavit is not in question. The presumption is that they are true; but, true or false, the married woman who by affidavit states facts as specified in the act of 1903, supra, becomes liable for the payment of her debt exactly as any other capable, contracting party would be liable. She is liable because her disabilities are removed and no statutory exception for her benefit is made. There is no statute under which she can assert suretyship. She has by the legislature been taken out of the class referred to in §7855, supra. If the facts stated in her affidavit are true, she was not a surety. If she swore falsely in order to get the loan, such act affords a very good reason for declaring, as the legislature has done, and as the courts must do, that the exception made by §7855, supra, is not for her.

The judgment is reversed, and the cause remanded, with instructions to restate the conclusions of law in accordance herewith, and to enter a decree against Carrie G. Colt lor the amount of said notes, and for the foreclosure of the mortgage securing the same.