58 N.H. 490 | N.H. | 1878
On the sixteenth day of March, 1868, the plaintiff was the owner of three undivided sevenths of a farm in Lebanon, in her own right, and her husband, Franklin O. Thompson, was the owner of the remaining four sevenths, and on that day the defendant Ela loaned to the plaintiff's husband the Sum of $1700, and the plaintiff and her husband executed and delivered to the defendant a note for the $1700, and a mortgage upon the Lebanon farm to secure the same. The plaintiff now asks to be relieved from the mortgage, claiming that a mortgage executed by a married woman of her separate estate, to secure a debt of her husband, is void.
Whatever may be the construction of c. 32 of the Laws of 1876, which we are not now called upon to determine, it is certain that prior to the passage of that act there was no statute of this state limiting or abridging the rights and powers of married women relative to their separate estates. The power of the wife to convey her separate estate, by joining in a deed with her husband, has never been questioned. Gordon v. Haywood,
If a married woman has the same power over her separate estate as if she were unmarried to convey it by mortgages we see no reason why she may not mortgage it to secure her husband's debt, if she chooses voluntarily to do so, in the absence of any statutory prohibition; and we are of opinion that the mortgage of the plaintiff and her husband to the defendant was valid and binding upon the estate of the plaintiff in the Lebanon farm. Babbitt v. Morrison,
The plaintiff claims that the mortgage is void for uncertainty in *492
the description of the premises. The error consists in using the name of Jonathan Howe instead of John Howe as a former owner of the premises, and the person who held a life lease upon the same. In other respects the description is correct. The error is apparent upon an examination of the deeds referred to in the description: the plaintiff and her husband were living upon the premises when the mortgage was executed; Jonathan Howe had never conveyed to them or either of them any land in Lebanon; the premises were the same conveyed by Richard S. Howe and wife, as stated in the mortgage; and, rejecting that portion of the description which is erroneous, sufficient remains to designate the premises intended to be conveyed. Drew v. Drew,
March 8, 1875, the defendant, at the house of the plaintiff, on the mortgaged premises, in the presence of two witnesses, declared that he entered peaceably for the purpose of foreclosing his mortgage, and at the same time the plaintiff and her husband executed an agreement in writing, under seal, that the plaintiff would occupy the premises as tenant of the defendant for the term of one years paying rent *493
and taxes, and at the end of the year quit the same. Subject to the plaintiff's exception, the defendant put in evidence the affidavits of the defendant as to the entry for foreclosure, and of one witness only, sworn Feb. 23, 1877, and a copy of the foreclosure notice with proof of publication in a Lebanon newspaper, three weeks successively in July and August, 1875, all recorded in Grafton registry of deeds, Feb. 23, 1877. By the entry of the defendant, March 8, 1876, the publication of the notice of foreclosure, and the occupation of the premises by the plaintiff, as tenant of the defendant, for one year, the mortgage was properly foreclosed. Kittredge v. Bellows,
The plaintiff also prays that the defendant be enjoined from making any use against her of a judgment of a justice of the peace, rendered against her and her husband, March 24, 1877, in a proceeding under the landlord and tenant act, instituted by the defendant Ela, to recover possession of the mortgaged premises, after the foreclosure of the mortgage had been completed. It appears that the plaintiff and her husband, having been summoned before a justice of the peace under the landlord and tenant act, March 23, 1877, filed a plea of soil and freehold, an order of transfer to the supreme court was made, and an adjournment had to enable them to get sureties. At a later hour the same day, the husband went before the magistrate and recognized in due form with two sureties, according to the order made, and the magistrate afterwards went to the house and took the recognizance of the plaintiff, she being sick at the time. It was understood by the sureties, the principals, and the magistrate, when the sureties recognized, that they were sufficient, and no objection was then made. Objection afterwards being made by the defendant Ela (plaintiff in that case) to the sufficiency of the sureties, the magistrate informed the plaintiff's husband that he must get further sureties, which not being done, judgment was rendered for the possession of the land. Whether upon these facts there was such irregularity in the proceedings as to invalidate the judgment we do not determine, as we are of opinion that the plaintiff has an adequate remedy at law by a petition for a new trial.
Bill dismissed
ALLEN, J., did not sit. *494