This was a bill in equity, filed in the Cook Circuit Court, by Hurd, to reform and foreclose a mortgage executed by Moulton and wife on real estate of the wife, to secure the payment of four promissory notes executed by Moulton to Hurd, for $852.46 each, with six per cent, interest from date, payable in one, two, three and four years, and dated on the 27th day of October, 1853. The mortgage contained a condition, that if Moulton and wife should well and truly pay, or cause to be paid, to Hurd, said sums of money, with interest, in the manner specified in the notes, then and in that case the mortgage to be void. It also contained a further proviso that “ it was understood, that in case any one or more of the above payments of principal or interest at the time or times the same are above specified to be paid, the whole sum and interest above mentioned shall become due and payable, this mortgage being for purchase.” The bill alleges that the words, “ of failure to pay,” should have been, according to the understanding of the parties, inserted in the last named covenant, after the words “ in case,” and before the words “ any one or more,” but that, owing to inadvertence and mistake, they were omitted. The bill alleges that the first note had fallen due, and that it, together with the interest on the others, remained unpaid. And prayed that the mortgage be reformed and foreclosed for the amount of all the notes and interest. The defendants, as required by the bill, answered under oath, and denied that any mistake had occurred in executing the mortgage, and that the words, “ of failure to pay,” were not by mistake and inadvertence omitted to be inserted in the mortgage, as charged in the bill. To this answer a replication was filed. The complainant subsequently filed a supplemental bill substantially the same as the original bill, but alleging that the second note had fallen due and was unpaid, and the prayer was the same as in the original bill. To the supplemental bill defendants demurred, which the court overruled. The supplemental bill was taken as confessed, and the court decreed a foreclosure of the mortgage, for the amount due on the four notes.
This record presents the question whether a court of equity has the power to reform the deed of a married woman.
At the common law, a feme covert could not, by uniting with her husband in any deed of conveyance, bar herself or her heirs of any estate of which she was seized in her own right; or of her right of dower in the real estate of her husband. The only mode in which a married woman could, at common law, convey her real estate, or bar her right of dower, was by uniting with her husband in levying a fine. This was a solemn proceeding of record in open court, and the judges were supposed to watch over and protect the wife’s rights, and ascertain by a private examination that her participation in the act was voluntary and unconstrained. This is the principle upon which the efficacy of a fine is placed by most of the authorities. 3 Cruise Dig. 153, title 35, chap. 10.
Acting upon the principle that the participation of the wife in the transfer of her real estate must be free and unconstrained, the courts have held that an agreement made by a feme covert, with the assent of her husband, to sell her real estate, is absolutely void at common law, and that such a contract could not be enforced in equity. And that the whole system of the common law is opposed to the enforcement of the contracts of married women for the sale of their real estate. And that it is a fundamental principle of the common law, that such contracts are void, except when she conveys her estate by a fine duly acknowledged, or by some matter of record. 5 Conn. R. 492. Our conveyance acts have, however, changed the mode by which a married woman may convey her real.estate. It enables her to do so, by joining with her husband in a deed for that purpose. And which, to be effectual, must be acknowledged before one of the officers of the law authorized to take such acknowledgment. To give it validity, he must examine her separate and apart from her husband, after having explained to her the contents and effect of such deed, whether she executes it freely and voluntarily, without the coercion of her husband. R. S. 1845, 106, sec. 17.
This provision of our statute, it will be observed, is an enlargement, and not a restriction, of the common law powers of a feme covert. It authorizes a less formal mode of conveyance than was known to the common law. It gives to her deed, when duly acknowledged, the same force and effect of a fine ; but if not acknowledged in accordance with the statute, no estate passes. The statute must be complied with, and if it is not, the deed is left, as at common law, absolutely void. Lane v. Soulard, 15 Ill. R. 123.
In New York and Ohio, where they have statutes similar to ours, their courts have repeatedly refused to enforce the contracts of married women for the conveyance of their real estate, and also to rectify and reform mistakes in deeds made by them for a conveyance of their lands; upon the ground that their deeds, to be effectual, must be acknowledged freely and voluntarily, and in the mode prescribed by the statute. Knowles v. McCambry et al., 10 Paige R. 342; Martin v. Develly, 6 Wend R. 10 ; Carr v. Williams et al., 10 Ohio R. 305 ; Purcell v. Garhore et al., 17 Ohio R. 105.
By reforming the mortgage it was essentially changed. As it was executed and acknowledged, the complainant could only foreclose for the amount of each note as they severally became due, while, by that instrument as reformed, he could foreclose for the whole amount of the notes, upon default in the payment of either of them. This was to change the deed most materially, arid to make it altogether a different instrument from the one executed by the wife of Moulton; and against her consent, and against the intention and understanding of the parties at the time the mortgage was made, if her sworn answer is to have any weight—and it stands uncontradicted by any evidence. This would be to make a deed for the wife against her consent. This the court has no power to do; even the legislature could not give it effect, unless she acknowledged it freely and voluntarily in the mode prescribed by the statute. Lane v. Soulard, 15 Ill. R. 123.
The court below erred in reforming this deed, and in foreclosing the mortgage for more than the first and second notes, the others not being then due. The decree of the court below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Decree reversed.