53 Ark. 178 | Ark. | 1890
In Gardner v. Barnett, 36 Ark., 479, it was ruled that the defense of coverture was personal to the feme covert and could not be pleaded by another; and in that case, as well as in Chollar v. Temple, 39 Ark., 238, it was held that the defense must be made by the-woman before judgment in order to be availing to her. Both questions were practically decided in the previous case of Norris v. State, 22 Ark., 526-7, when the court, through Judge Fairchild, ruled that an execution which issued upon the statutory judgment arising by operation of law upon a forfeited delivery bond was not void by reason of the fact that the only surety on the bond was a married woman. While the statutory judgment is not res adjndicata, like the judgment of a court, the effect of the ruling in the case last mentioned is, that when a married woman is a party to it, it is voidable at her election only. That case rules this. A surety is as essential to a statutory bond and judgment as a principal. If a married woman may give color of validity to a statutory bond as surety for another, she can do so by signing for her own benefit with another as her surety. Compare Fowler v. Jacob, 62 Md., 326, and Walker v. Jessup, 43 Ark., 163.
It follows that the sale of Todd’s interest in the lands in suit was divested, by the sheriff’s sale and conveyance made under the execution upon the forfeited purchase bond, in which he was surety for Mrs. Bolivar, and that he had no in terest to be acquired by the plaintiff at a sale had under a subsequent judgment.
The plaintiff must therefore fail in this action of eject.ment.
Affirm.