obtains money from her husband, to be used in and for the benefit of separate estate or business, and expressly promises to repay, it gives to the husband an equitable claim for repayment which he may enforce by action; Harrell v. Harrell, 117-95. No difference from what source a married woman acquires money, so that such acquisition is not tainted with bad faith, she has a right to loan it to her husband and take his promissory note therefor and, thereafter, when he shall become in failing circumstances, he has a right to prefer her as a creditor, to the exclusion of his other creditors; Wilson v. Wilson, 113-415; Laird v. Davidson, 124–414. The presumption of law under the statute of this state is that the separate property or money, of a wife, which is taken possession of by her husband, is to be considered as held by him for her use and benefit; until such presumption is overcome by evidence, showing that she intended to make a gift of the property to him. Where, then, the wife has never acquired the actual dominion over her money, her husband having collected and appropriated it to his own use before it came into her possession, the mere fact that she consented that he might collect and receive the money, raises no presumption that she intended to bestow it upon him. In such a case the husband becomes her agent, or trustee, and must account, unless he, affirmatively, shows that the intention of his wife was to bestow the property on him, as a gift. In the event of his death, therefore, the wife may present her claim against his estate for a recovery of the amount so collected and received. Where, however, the husband, with the consent of his wife, is in the habit of receiving the income, profits and dividends of her separate estate and using the proceeds for the benefit of the family, a different rule obtains. In that case it will be presumed that the wife consented and agreed that he should so receive and use the property and the law will not compel him to an accounting; Denny v. Denny, 123-241. 5119. Wife can not be surety. Under this statute a mortgage covering land owned in this state by a married woman executed, in the state of Ohio, by her as surety for her husband, is void; Swank v. Hufnagle, 111-453. This section positively forbids a married woman to enter into any contract of suretyship, in any manner and, as positively declares that any such contract, as to her, shall be void. So, that, where no question of fraud or estoppel has intervened any contract of suretyship, whatever may be its form, entered into by a married woman, since September 19, 1881, is absolutely and wholly void. If such married woman shall die intestate, leaving children her surviving, they, being her privies, both in blood and estate, may defeat the mortgage by pleading the coverture of their mother as she might if alive. The husband, however, who joined in the execution of the mortgage and received the avails and benefit of the transaction, is estopped from making such defense as to his interest in the land; Ellis v. Baker, 116-410. Action to foreclose a mortgage executed by man and wife. The complaint, on its face, made it to appear that the money, repayment of which the mortgage was intended to secure, was borrowed and used by the wife to pay off a mortgage lien on the land, belonging to her by descent from her father. An answer which merely alleges, generally, that the debt was a debt of the husband and that the wife signed as surety is bad. In such case it is not error to overrule a demurrer to a reply attempting to set up an estoppel against a plea alleging want of power in the wife to make the mortgage; Stanford v. B. Sav. & L. Assoc., 122-423. In an action against a married woman, on her individual note, which is secured by a mortgage on her separate real estate, her husband joining in the deed, the burden is on her to show her suretyship, if she sets that up for a defense. It will not be presumed that she occupies the relation of surety, or guarantor; the fact must be established by affirmative evidence; Miller v. Shields, 124-170. Where a married woman transfers her separate real estate to her husband, by deeds of conveyance, importing a money consideration, for the purpose of enabling him to mortgage it as his property, to secure a loan for his own benefit, she will be estopped from asserting that the transfer was not bona fide, as against a mortgagee who is not shown to have had knowledge that the conveyances were a mere contrivance to evade this section, prohibiting her from entering into a contract of suretyship; Long v. Crosson, 119-5. A married woman, during the absence of her husband, applied for a loan, stating that the money was for her use; the loan was made, the check for the money was made payable to her and she actually received the money, without any knowledge or information on the part of the lender, or reason to believe, that it was for the use of any person other than herself. As evidencing the loan she executed a note and a mortgage to secure it on her separate property, her husband joining in the deed. As between her and the payee of the note, she is a principal debtor and liable as such, and in such case the lender can not be affected by any disposition she afterward made of the money which she received. The facts would fully sustain an estoppel; Bouvey v. M'Neal, 126-543. A judgment was rendered, by confession, against K. and his wife, in the state of Illinois in a court of general jurisdiction. Subsequently an action was instituted, in Indiana, on the judgment and a writ of attachment issued which was levied on the property of the wife. In such case, the wife could not show as a defense to the judgment and attachment proceeding that the debt represented by the judgment was a debt of the husband and that she was but a surety upon the note sued on and merged in the judgment rendered in Illinois and that the property attached, being her individual property, was not liable for the debt. The judgment in Illinois fixed her status and relation to the debt as, also, her liability for its payment. Having failed to set up her suretyship when proceeded against in Illinois she could not, thereafter, do so; Kingman v. Paulson, 126-508. An action is not maintainable against a county auditor for a decree cancelling a school fund mortgage, on the ground that the mortgaged property is owned by the wife while the mortgage was executed to obtain money by a loan to her husband. The auditor is not the party in interest; the mortgage is neither payable to nor owned by him; Snodgrass v. Morris, 123-426. A married woman, as the agent of an implement company, contracted with the company to become responsible for the payment for all implements and machines sold by her. In pursuance of the agreement she guaranteed the payment of a promissory note by indorsement in writing. Such guaranty is a contract of suretyship and void, under this section; Nixon v. Whitely, 120-362. A married woman is not bound by a note executed by herself and husband jointly for the purchase money of real estate purchased by and conveyed to the husband; she having neither received nor contracted for any part of the consideration, although it was agreed that she should be bound as principal. Suretyship is a fact collateral to the contract and arises out of the equities existing between the parties. If, in fact, a married woman never received nor contracted for any benefit, but signed on a con sideration, the benefit of which was received by one of the joint promisors, then, no matter that she may have agreed to be bound as principal, the law assigns her the status of a surety and she will not be bound, unless she has, in some way, estopped herself from setting up the facts; Thacker v. Thacker, 125-490. Action by a married woman, under section 396, to set aside a default and to be relieved from a judgment rendered against her, in favor of the defendant. In such case a complaint, properly verified, is sufficient which alleges a judgment by default was taken against the plaintiff. A married woman, on a mortgage executed by her, on her separate real estate, to secure a debt due from her stepson to the plaintiff in the original action, and by the procurement of such plaintiff, no part of the consideration for which the mortgage was executed having been received by her; that she retained attorneys to make the defense of suretyship for her, in the foreclosure proceeding, but that her husband, being induced thereto by threats from the plaintiff, directed or informed her attorneys that it was her wish that they should withdraw their appearance and allow judgment to go against her by default and that her attorneys, sup posing that her husband was authorized to represent her, in the respect mentioned, withdrew their appearance and allowed a judgment and decree of foreclosure to be taken against her; that she had no knowledge of the acts of her husband, or of the withdrawal of her attorneys, until after the judgment was taken and the decree rendered and 1 hat the conduct of her husband in the respects mentioned was wholly unauthorized by her. Such a case is clearly, as to the neglect, if any, excusable within the section 396, and the facts being proved, as stated, entitles plaintiff to relief; C. Brew. Co. v. Cullins, 125-110. A mortgage properly executed by a married woman, covering her separa se real estate, is a valid and binding security, unless it constitutes a contract of suretyship is prowithin the meaning of this section. By force of this section a married woman tected, as at common law, in all transactions which do not relate to or benefit her sepa rate estate or business, or which are not to her personal benefit. Such transactions, however, as relate to or benefit her separate estate or lawful business transactions will be binding on her. A married woman, G., attempted to convey her separate real estate to her husband, T. J. G., by warranty deed, in order, by such deed, to enable him to mortgage it as a security for a loan. The note of the husband, for the money borrowed, was secured by a mortgage on the same land as was sought to be conveyed, in which both husband and wife joined. The husband expended a portion of the money borrowed in the purchase of real estate, the title to which was taken in the name of the wife and in making improvements on the land so purchased for her. Later, the husband and wife conveyed the mortgaged land by deed of warranty to S. who, afterward, conveyed, by like deed, to J. W. J. and G. W. J.; the latter instituted suit to quiet title in them and sought to have the mortgage of T. J. G. and G., the husband and wife, cancelled. (1) To the extent that the money was expended in the purchase of real estate for the wife and in making improvements thereon the mortgage was not a contract of suretyship, but a valid incumbrance on the land when conveyed to J. W. and G. W. J.; as to the residue, as the loan which the mortgage was given to secure was made to the husband and applied to his personal use, the wife occupied the relation of surety and so far it was invalid. (2) Grantees, plaintiffs in the action, could not set up the coverture of the wife- it being a personal defense- and have the mortgage cancelled; Johnson v. Jouchert, 124-107. D. H. and his wife each owned forty acres of land adjoining. The entire tract they mortgaged, the wife joining, to secure a debt of the husband. After the death of the wife the father of D. H. purchased the entire eighty acres of land from his son, the surviving husband, agreeing, as a consideration, to pay the mortgage debt resting on the late wife's forty acres and have the mortgage thereon cancelled. Instead of causing the cancellation of the mortgage, after paying the debt, the father as purchaser took an assignment of the mortgage and instituted an action for foreclosure. The children of the deceased wife, she being but a surety for the debt of her husband, had a right to have the husband's lands first sold to satisfy the mortgage: Hoppes v. Hoppes, 123-398. A man and his wife executed a second mortgage covering two parcels of land one of which parcels was owned by them jointly, the other being the property of the husband in his several right- to indemnify mortgages against loss, as sureties of the husband. To enable the husband and wife to borrow money wherewith to discharge the lien of the first mortgage and, thereby, to avoid a threatened foreclosure, the indemnifying mortgage was released, on the agreement of the mortgagors-husband and wife to execute a junior mortgage in lieu of the mortgage released and assign to mortgagees, as collateral security, a note which was the property of the wife. The wife was the surety of the husband in the entire transaction; she was entitled to the possession of the note pledged as collateral security, not being estopped to assert her right to such possession as the mortgagees, having full knowledge of the facts, were chargeable with knowledge of the legal consequences; Wolf v. Zimmerman, 127–488. An action was brought in the state of Illinois, in a court having jurisdiction of the subject matter and the person, to recover judgment on certain promissory notes executed by a husband and wife. The wife appeared to the action and pleaded suretyship. Judgment was rendered against her, non obstante the plea; judgment plaintiff, afterward, instituted a suit in this state, to foreclose a mortgage executed by the husband and wife to secure the payment of the notes on which the judgment had been so taken. In this latter suit a defense of coverture and suretyship can not be pleaded; such questions are res adjudicata. The record of the first case, the transcript being properly certified under section 472, was properly admitted in evidence, and it showed that the question of suretyship was raised in the case, tried and determined in favor of plaintiff and was conclusive evidence of the fact; Lieb v. Lichtenstein, 121–486. Where husband and wife hold an estate by entireties through a conveyance made to them jointly, his note being accepted for the purchase money, the debt is his, not hers. A mortgage executed to secure the note executed by both is void, as against the wife; Stewart v. Babbs, 120-570. S. and his wife owned land as tenants by entireties and the former was indebted. To evade this statute, which prohibits a married woman from incumbering her property as surety, the land was conveyed to a trustee, who reconveyed it to the husband alone, after which it was mortgaged by the husband and wife to secure the former's antecedent debt and, then, through another trustee reconveyed to the husband and wife as previously held. The mortgagee had knowledge of the purpose of the conveyances. It is settled that a mortgage by a married woman of her separate real es tate to secure the debt of any person may be defeated by her in a suit by the mortgagee unless her conduct has been such as to work an equitable estoppel against her. So she can thus defeat a mortgage held by her with her husband as tenants by entireties, and in such case the mortgage is voidable both as to her and the husband. That which can not be done directly can not be done by indirection. The mortgage is void; M'C. H. M. Co. v. Scovell, 111-552. A mortgage executed by a man and wife on land which they owned as tenants by entireties was not necessarily void, either at common law or under our statutes. Under this section, however, both the note and mortgage are void, when secured on land so held as to the wife, at her pleasure, if she executed them only as surety for her husband; Bartholomew v. Pierson, 112-431; Crooks v. Kennett, 111-349- In a suit to foreclose such a mortgage, however, where the wife alleges her suretyship by cross complaint and seeks a cancellation of the mortgage, the burden rests on her to show its invalidity for the cause stated. So, where the finding is merely that she signed such mortgage to enable her husband to obtain the money advanced thereon and not to obtain money for herself, and that the husband received the money, a conclusion of law that the mortgage is void and therefore should be cancelled is not warranted, in the absence of a finding of the ultimate fact, that the wife signed as surety; Bartholomew v. Pierson, 112-431. To bring a mortgage, executed by husband and wife, on land owned by them as tenants by entireties, to secure a loan of money, made on their joint application, within the prohibition of this section, making the wife's contracts of suretyship void, the burden is on the mortgagors to make it appear that the consideration of the notes and mortgage was not obtained and used for the benefit of the joint estate, and it must affirmatively appear that the money received did not inure to the benefit of the wife or of the mortgagors jointly. Wherefore, a finding that the money received on the mortgage was used by the husband "mainly in discharging his indebtedness upon which his wife was surety," and that he "recognized all the debts paid with the money as his individual debts, upon which his wife was only surety," does not constitute a sufficient finding of the fact of the wife's suretyship; Sec. Co. v. Arbuckle, 119-70. 5124. Wife's exemption. A judgment against a husband and wife can not be set off against a judgment held by them, where they make due claim to the exemp tion provided by law, the right of the wife to claim exemption being as clear, under this section, as is that of her husband; Junker v. Hustes, 113-524. 5130. Wife's earnings and profits. The money which a wife earns in a business a promissory note from her husband and his indorsement of it will convey the note to her as an indorsee; Wilson v. Wilson, 113–416. This section in no way changes the relation between husband and wife. It neither attempts to exonerate her from the performance of any proper service for the benefit of the husband, either in the household or in his business, nor does it attempt to wife the sole owner of her earnings when she performs services for persons other than create any liability on the part of the husband to pay for such services. It makes the It en. her husband and of profits made from any trade or business carried on by her. ables the wife, if she chooses so to do, to carry on a trade or business on her own ac count and to perform services for persons other than her husband and, in such she is the owner of the profits and earnings; Cit. S. Ry. Co. v. Twiname, 121-3775133. Complaint for support. In a proceeding for separate maintenance cases, under section 5132, the wife's complaint averred that she had conducted herself as a kind and dutiful wife; that defendant was a person of violent temper and, without the children and the violent and ungovernable temper of defendant, she was cause, and from com. home and compelled her to leave her home, and that, by reason of the tender years of pelled to take the children with her. It was objected, on appeal, that the allegations cl. 1). The validity of the complaint should have been tested by demurrer to the com. are not sufficient to charge the husband with desertion of his wife and children (§ 51 32, plaint and the question was not presented by a demurrer to answer, which was, by leave of court, withdrawn. In the absence of demurrer the objection is one that is obviated by the evidence and cured by the finding as is not such a defect as will be considered when raised, for the first time, after trial and finding by the court; v. Walter, 117-248. Walter NOTES TO CHAPTER 72. INSANE PERSONS, DANGEROUS. 5147. Order of court. The statute, of which this is a section, makes provision whereby insane persons may be restrained under the order of a circuit court at the public expense. Provision is, also, made whereby the public treasury may be reimbursed from the estate of one who is dangerously insane, if he be possessed of an estate. This statute looks to the protection of the public from those whose insanity makes them dangerous to the community. It has in it no feature of charity to the individual nor was it enacted with a view to ber volence. If proceedings are taken hereunder and a person is adjudged insane and dangerous to the community, and has become a charge on the public treasury, it is within the power of the county commissioners, under this section and by its terms, to collect the charges from the estate of the insane person; Board etc. v. Ristine, 124-243. |