Alexander v. Bouton

McKee, J.: Defendants in the Court below, on the 1st of September, 1877, made the promissory note and executed the mortgage which constitute the subject-matter in controversy in this case. [17]The defendant, E. Bouton, since the execution of the note and mortgage, has been adjudicated a bankrupt. As a defense to the action, the defendant, Margaret, in her answer to the complaint, alleges that, at the time of the execution of the mortgage, she was a married woman and the wife of the codefendant; that her husband was at that time in debt; and for the purpose of enabling him to borrow money from the plaintiff to pay his indebtedness, she became security for him to the extent of her separate property; that of the money which her husband received from the plaintiff she had had no portion; but that her husband received and applied it all to the payment of 1ns debt. No portion of it was applied to her use and benefit, or to the use and benefit of any of her separate property; that the plaintiff knew that she signed the promissory note oidy as a surety, and with knowledge of that fact had taken an agreement in writing from others to pay any deficiency in case the mortgaged premises should, after foreclosure and sale, prove insufficient to satisfy the mortgage debt; and that, in consideration thereof, the plaintiff agreed to release her from any judgment for insufficiency.

At the trial the promissory note and mortgage were offered in evidence. The one was signed by the husband and wife, and the other was also executed by them in the mode prescribed by law. By the promissory note both, jointly and severally, promised to pay to the plaintiff, or to her order, the sum of $2,000, one year after date, with interest at the rate of one percent, per month, etc. By the mortgage both also jointly and severally covenanted to pay to the plaintiff the promissory note when it became due, and all assessments and liens which might be laid or imposed upon the mortgaged property during the existence of the mortgage.

It does not appear by the promissory note or mortgage that the mortgaged premises were the separate property of the wife; but, at the trial of the case, the wife testified that they were her separate property; and the husband in substance testified that he and a friend, by representations or statements made to the wife, induced her to consent to mortgage her property, for the purpose of enabling him to borrow the money from the plaintiff, and that she signed the promissory note and executed the mort[18]