Watson v. Thurber

11 Mich. 457 | Mich. | 1863

Campbell J.:

The defense in this case is based upon the claim that the mortgage which was given by Mrs. Thurber on her own property (her husband joining with her) as security for his debt was not fully executed and acknowledged. There is no legal objection to the making by a wife of a mortgage to secure her husband’s debts. And under the act of 1855, a wife can make such a mortgage in the same manner and with the same effect as if unmarried. The peculiar acknowledgment formerly required is not now requisite where she conveys her own estate.

We do not think the defense of undue influence or coercion made out. Making every allowance for the facility offered by the marriage' relation of using against the wife a degree of influence not possible in most other cases, we do not think a comparison of the testimony on both sides justifies us in assuming that Mrs. Thurber signed the mortgage against her own free will in the proper sense of the term. She was reluctant, hut her reluctance was not, we think, so extreme as to show that it was improperly overcome. Her subsequent statements to Mr. Smith freely admitting the validity of the mortgage are not consistent with any theory of improper conduct in her husband or Mr. Watson.

Decree affirmed, with costs.

Manning and Christiancy JJ. concurred. Martin Ch. J. was absent.