Magaw v. Stevenson

The opinion of the-court was delivered

by Lowrie, J.

— We think this is a valid mortgage of the land of Mrs. Magaw. It was properly acknowledged, and it is not affected by the fact that she joined her husband in the bond which it was intended to secure.

There is a proviso in the mortgage, but nothing similar in the bond, that in case of a specified default, the plaintiff shall have a scire facias, not only for the sum due, but also for the recovery of the expense of collecting the same; and it is objected that a married woman could not make such a contract, and so it seems to us. This is not pledging her property for her husband’s debt, (which is had enough, for it is almost always fatal,) because he is not at all bound for it, but only her land. It is her contract with his consent that, if he does not pay a certain debt, that debt and more shall be levied out of her land. It is giving security for more than the amount due. The judgment ought to have been limited to the debt and interest of the bond.

The service of the seire facias was made by three nihils, on the first and fourth Mondays of January, and first Monday of February. The third was useless, for the others were made to regular return days in different terms, and that is all the law requires.

There was no error except in adding the expenses of collection; and that we correct.

The judgment of the District Court reversed, and judgment is now here entered in favor of the plaintiff for the sum of six thousand two hundred dollars, with interest from the first day of July, 1855, and costs, and the record is remitted.