145 Ind. 154 | Ind. | 1896
— This action was instituted by the appellee, to foreclose a mortgage executed by appellants to secure the payment of a loan obtained from the school fund. The questions presented by the appeal arise out of the special finding of facts, and the conclusions of law thereon.
The material facts in the case, as summarized from the court’s special finding, are as follows:
■ On March 19th, 1894, and for fifteen years prior thereto, the appellants, John A. Trimble and Clara J. Trimble, were husband and wife, and said relation still continues; that, on said date, and prior thereto,
The court further finds that there is due and unpaid upon the mortgage, as first executed, the sum of $1,268.88, and upon the instrument as changed, the sum of $1,583.55.
Upon the facts as found, the court stated its conclusions of law in substance as follows:
1st. That the plaintiff is entitled to a decree, foreclosing the mortgage in suit, for the sum of $1,268.88.
2d. That the plaintiff is not entitled to foreclose the mortgage for the $300.00 additional loan to the husband, John A. Trimble.
3d. That as to this loan the plaintiff is entitled to a personal judgment against John A. Trimble only, for the sum of $314.67.
Judgment followed in accordance with the conclusions of law.
The only question presented and discussed by counsel for Clara J. Trimble is the contention that, under the finding of facts, it is disclosed that the execution of the mortgage in question was an attempt to pledge real estate held, by her and her said husband, as tenants by entireties, for the debt of the latter. That it was a contract of suretyship, as to her, into which, under section 6964, R. S. 1894 (section 5119, R. S. 1881), she was expressly prohibited from entering, and therefore the instrument is void and cannot be enforced. It is settled law, in this State, that a mortgage executed by a married woman upon her separate real estate to secure the debt of her husband, or others, is invalid. Also, that a mortgage executed by husband and wife, upon lands held by them as tenants by entireties, to secure the debt of the husband, or others, is void as to both. This rule, however, is subject to the prin
It is also settled that where a married woman, to obtain a loan from the school fund, complies with all the statutory requirements, and executes a mortgage upon her real estate to secure the loan so obtained, she is thereby estopped from disputing the validity of the mortgage, and this is true, although the auditor, at the time the loan is made, may have knowledge that the money so derived is to be used for the benefit of her husband or other persons. Snodgrass v. Morris, Aud., 123 Ind. 425; Lloyd v. State, ex rel., 134 Ind. 506; Davee v. State, ex rel., 7 Ind. App. 71; Welch v. Fisk, Aud., 139 Ind. 637.
In Snodgrass v. Morris, supra, which was an action by a married woman to cancel a school fund mortgage, upon the ground that the mortgaged premises belonged to the plaintiff, and were mortgaged to obtain money for the husband, Elliott, J., speaking for the court, said:
“A county auditor is a public officer, invested by the statute with certain rights and duties, and he possesses no other rights than those conferred by the statute. He is, in no sense, the owner of the school fund, nor has he any right to release or cancel mortgages given to secure loans made from that fund, except as the statute provides; and there is nothing in the statute empowering him to decide whether a mortgage is, or is not, void because executed by a married woman to obtain money for the benefit of her husband.”
In the case of Lloyd v. State, supra, where it appeared that the appellant, who was a married woman at the time she executed the mortgage upon her lánds
“There is nothing to prevent a married woman from securing a loan from the school fund. If she complies with the law she is as much entitled to a loan as any other person, and she is presumed to know the law, as are all persons, and to know what rights and duties the county auditor is vested with. When she executes her note and mortgage, and it is accepted, she has the right to the money which the loan calls for, and if the officer or officers' refuse to discharge their duties in this behalf, and refuse to pay the money over to her, she has a remedy, and may compel the payment of it to her; and if she fails to exact her rights in that behalf, or waives her right to the money, and directs the auditor to pay the money to another, or permits him to retain it and apply it to other purposes, she may have a right against him, but she cannot defend against the mortgage executed to the State. The mortgage is the property of the State, and is enforceable against her. The State cannot be prejudiced or suffer loss by reason of her laches in failing to demand and receive the money on the execution of the mortgage, or in directing or permitting the auditor to retain and apply it in payment of her husband’s debts.”
In the appeal of Davee v. State, supra, another branch of the Lloyd case was very fully considered by the Appellate Court, and it was there held that the wife, under the facts in that case, had estopped her
For obvious reasons, we think, a distinction should be made. The loaning of money to any one by an individual from his private funds is optional with him, and is a matter in which he may fully exercise his own judgment as to when, how, and to whom he will loan. He has the undisputed right to select his own agent to act for him in making loans. He can formulate the written instruments, which he will require the borrower to execute, in order to obtain and secure the payment of the loan. He may impose such legitimate conditions and require such steps to be taken, by applicants for loans, as his wisdom and judgment may dictate. But it is quite different op the part of the auditor, in loaning the money belonging to the school fund. The latter is a public officer, who is commanded by the statute to loan the money belonging to this fund. He has no choice in the matter. The language of the law is, that the money of the fund “shall be loaned.” Section 5796, R. S. 1894. All the antecedent steps to be taken by a borrower, are prescribed by the statute. The law even defines the form of the note and mortgage that are to be executed by the borrower. The evident object sought by the legislature, under these statutory requirements, was to
There is no law to prevent a married woman from joining with her husband in the application for a loan from the school fund, for her own use and benefit, and to join with him in pledging by mortgage real estate held by them, .as tenants by entireties, to secure the payment thereof.
In the case before us, it appears that the wife, Mrs. Trimble, voluntarily subscribed to the affidavit prescribed by the statute, and joined with him in producing the certificate of the clerk and recorder, and in complying with the other requirements of the law, in order to obtain the loan in dispute. By these solemn acts of hers she must be held to have represented herself to be an applicant for the loan in question. Having done all this, it was no concern of the auditor to ascertain what arrangement, if any, existed between her and her husband as to the disposition that was to be made of the money to be obtained. When, as provided by section 5796, R. S. 1894 (1261, E. S.), it was shown to the satisfaction of the latter, that the real estate offered by the applicants was in value fully sufficient to secure the desired loan, and that it was held by them by a good and sufficient title, without incumbrance, and not derived from a sale for taxes, and they had fully complied with the other requirements of the law, it was not incumbent, under the statute, upon the auditor to proceed further and ascertain if the money was to be used or applied for the benefit of the wife, and his knowledge of the facts, as to the purpose for which the money was desired, would not be binding upon the State. Had. Mrs. Trimble desired that the warrant drawn for
Under the facts in this case, it must be held that the appellant, Mrs. Trimble, is estopped from denying the validity of the mortgage in suit, and that the court did not err in decreeing a foreclosure of the mortgage executed for the original loan of $1,200.00.
No special reasons are urged to show that the judgment against John A. Trimble on the additional loan should be reversed, and hence we do not consider that question.
The judgments are affirmed.