This was a bill by husband and wife to annul a mortgage executed by them, and also a sale and conveyance of the mortgaged land, pursuant to a power contained therein. But the circuit court dismissed the bill, sustained the mortgage and confirmed the sale made thereunder.
To this decree it is objected that the debt which the mortgage was given to secure was the debt of the husband, while the mortgaged property was by statute the separate estate of the wife.
Since the cases of Collins v. Wassell, 34. Ark., 17, and Scott v. Ward, 35 Id., 480, the law must be considered as settled in this State that a married woman may mortgage her real estate for her husband’s debts.
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It is further objected that the land was Mrs. Petty’s homestead. But it is not perceived how this can affect the decision. The mortgage was made in the year 1881. And the constitution and laws then in force imposed no restraints upon the alienation or incumbering of the homestead.
Another objection was that Mrs. Petty never acknowledged before the officer that she had executed the mortgage of her own free will and accord. The certificate of the justice of the peace is in proper form. And it is shown by the testimony of Mrs. Petty herself, as well as by other evidence, that she did appear in person before him in the absence of her husband and make some sort of acknowledgment of this instrument. The case is thus brought within .the rule of Meyer v. Gossett, 38 Ark., 377, followed in Donohoe v. Mills, 41 Ark., 421. That rule is this: While it is competent for the maker of a deed to prove that there was no appearance before an officer to acknowledge its execution and no acknowledgment in fact, yet if he did acknowledge it in some manner, the officer’s certificate is conclusive as to the terms of that acknowledgment.
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But the principal point of contention is the alleged fraud of Grisard in procuring this mortgage security and total failure on his part to perform certain promises by means of which he induced Mrs. Petty to give it. The evidence conduces to prove the following state of facts: In the year 1879 there was an incumbrance upon the land in favor of one Atkinson, amount-to $178. Grisard, at Petty’s request, paid this off and took an absolute deed to himself, which, however, was only intended for a security. In 1881 Grisard, who was a merchant, furnished supplies to Petty upon the security of a mortgage upon the same land. Mrs. Petty joined both in the deed and in the mortgage, but owing to Grisard’s ignorance of the true state of the title, or the unskillfulness of the draughtsman, these instruments only purported to convey Mrs. Petty’s possibility of dower. As she was the owner of the land in her own right, she had no right of dower, and the supposed securities were worthless. In December, 1881, Petty owed Grisard $555, and for this sum he and his wife made their promissory note, payable November 1, 1882. To secure payment of the same, as well as all other indebtedness that they or either of them might owe Grisard for goods thereafter to be purchased, they mortgaged the land, a mule and wagon and the crop to be raised by Petty during the year 1882. It was distinctly understood that Grisard was to sell Petty such farm supplies as he might need during the year, estimated to be of the value of $350, upon the faith of this mortgage. And this was no doubt the.controlling consideration which influenced Mrs. Petty to pledge her land. Grisard soon .ascertained, however, that there was a prior incumbrance on the mule and wagon, held by a firm of merchants, who were engaged in business in the same village. He insisted that Petty should pay off this incumbrance before he would let him have any supplies. Finally it was arranged between the parties that Grisard should release his mortgage upon the crop; that the holders of the previous incumbrance upon the mule and wagon should also take a mortgage upon Petty’s crop, and furnish Petty the supplies he needed. This arrangement was carried out apparently to the satisfaction of all concerned. The merchants, who were substituted in Grisard’s place, sold Petty goods to the amount of $415. Grisard furnished Petty no supplies in that year; but his old debt remaining unpaid at the expiration of the term oí credit, he advertised and sold the land.
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In Gross v. McKee, 53 Miss., 536, it was adjudged to be fraudulent in a creditor to obtain a security for a pre-existing debt under a promise to make further advances, which promise he had no intention to keep and did not keep. But in Johnson v Murphy, 60 Ala., 288, it was ruled that the breach of such a promise, although it might support an action at law, or a plea of set-off to the extent of the injury actually sustained, was no ground for the cancellation of the mortgage for fraud.
We have no occasion to decide here which of these two apparently conflicting cases announce the better rule. There is no reason to believe that Grisard, when he took the mortgage, did not intend in good faith to perform his agreement with the Pettys, nor that they lost anything by his failure to do so, or incurred additional expense or inconvenience in procuring necessary supplies to enable them to make a crop. We may regard the supplies as having been actually furnished through the instrumentality of Grisard; for he released his mortgage upon the crop only upon condition that the other firm would fulfill his contract in that behalf.
Decree affirmed.