Low Bros. & Co. v. Anderson

41 Iowa 476

• Court: Supreme Court of Iowa
• Decided: October 25, 1875
• Status: Published

Opinion

Day, J. —

The court below held that a married woman cannot incumber her homestead to secure a preexisting debt of another, when no part of the indebtedness has accrued to her, and it has not inured to her benefit or to the benefit of her husband.

i mortgage • man -eoonsi¿eration. Chapter 126, Laws of the Thirteeth General Assembly, provides a substitute for section 2506 of the Revision, as follows: “ Contracts may be made by a wife, and liabilities hacurred, and the same enforced by or against her to the same extent, and in the same manner as if she were unmarried.” The note and mortgage were executed after this statute was enacted, and the court recognized its force by rendering a personal judgment against Mrs. Anderson upon the note. And there can be no doubt, it seems to us, that if she had executed a mortgage upon her separate property, other than the homestead, the same would have been valid, and could have been enforced. This seems to have been conceded by the court below.

2.Homr!siBAD: surety. ' There can be no doubt that the extension of time on the account due by Henry Anderson, jr., half for six, and half for twelve months, constituted a sufficient consideration for the execution of the joint note by the defendants. When they executed that note they created a valid debt which might have been enforced against each. ■ The mortgage refers to this note, declares that it is executed for the purpose of securing it; that it is the intention to convey all rights of homestead, and it is signed by Frances Anderson and her husband.

Section 2279 of the Revision, referring to the homestead, provides: “A conveyance by such owner is of no validity unless the husband and wife, (if the owner is married,) concur in and sign .such conveyance.” Section 2281 provides: “ It may also be sold for debts * * * * created by written contract executed by the persons having the power to convey, and expressly stipulating, that the homestead is liable therefor.”

The note and mortgage sued on answer every condition of this requirement. The note creates a debt by written contract, executed by the husband and wife, the persons having power to convey the homestead. The mortgage is executed by the same persons to secure this note, and it expressly stipulates that it is the intention for that purpose to convey all homestead rights. As somewhat analagous do this case, though before the adoption of chapter 126, Laws Thirteenth General Assembly, see Patton v. Kinsman, 17 Iowa, 428; Wolf v. Van Metre, 23 Iowa, 397; Green et al v. Scranage, 19 Iowa, 461.

The court erred in dismissing the petition for foreclosure.

Reversed.