Stevens v. Holman

McFarland, J. This is an action for the reformation of a mortgage executed to plaintiff by the defendants, Holman and wife, and to foreclose the same. Judgment went for plaintiff, and defendants appeal from the judgment—bringing up the judgment-roll alone.

Respondent had a former note and mortgage from appellants; and appellants, desiring further time, agreed to give a new note and a mortgage to secure it covering certain described land. Respondent consented; whereupon the old note and mortgage were canceled, and the note and mortgage now in suit were given. But the description in the new mortgage did not include all the [349]land which appellants had agreed to mortgage. Respondent supposed that the description did include all such land, and accepted the mortgage under the mistaken notion that he was thereby getting a lien upon all the land which appellants had promised to mortgage. Appellants knew that the description did not embrace all said land; but they, and each of them, “ knew that plaintiff believed that the mortgage, as executed by them to him, did include all the land they, and each of them, had agreed to mortgage as aforesaid, and that plaintiff was deceived in so believing, and took and accepted said mortgage with the mistaken belief that the same did embrace all the land said defendants" had agreed to mortgage to him.,,

If the appellants were both men, and there were no question of homestead rights involved, there would be no plausible objection to the judgment. But the land constituted the homestead of the appellants; and their counsel contend that, as a homestead can be conveyed or encumbered only by an instrument signed and acknowledged by both husband and wife, the acknowledgment of the latter to be in the form provided for the acknowledgment of married women, therefore there could be no reformation of the mortgage by the court, because such reformation would not have the sanction of the wife’s acknowledgment.

But the provisions of the statute invoked merely prescribe the things which are requisite to the due execution of a written instrument by a married woman. It may be readily conceded that she is not bound by any instrument not executed by her in the manner prescribed by the statute. When, however, she has duly executed a contract, there is no reason why she does not bear the same relation to it, and to rights and remedies under it, as any other contractor. (See Hamar v. Medsker, 60 Ind. 413; Savings etc. Soc. v. Meeks, 66 Cal. 371.) And in the case at bar the contract—the mortgage—was duly executed by the appellants, the wife having signed and acknowledged it with all the formalities prescribed by the