It is argued by the counsel for the plaintiff in ■ . error, that the question presented by the record, is, whether a feme covert can be charged with -her own and her husband’s fraud in making a contract for the loan of money, they acting in concert.
We do not think this is the main or material question, in the case. It may be that a feme covert cannot, by her fraudulent representations, subject herself to an action at law upon a contract, or be proceeded against personally, on account thereof, by bill in equity. We are not disposed to; discuss that question, about which so much learning has been- expended on both sides of it, as this is not a case wherein it is attempted to subject her personally.
The case, it seems to us, stands on other grounds..
The property conveyed by the deed of trust is admitted by the plaintiffs in error, to have been the separate property of the wife, Ellen, who received a deed of it in 1855, in the name of Ellen Ooughlin, and in that name conveyed it in 1858, by this deed of trust. The note given for the money which this deed was to secure, was executed by her husband, Andrew Young. How the question arises, this being the separate property of the wife, had she power to charge it with her husband’s debts, and can a court of equity, by a proceeding against the property, subject it to the payment of such charge.
The rule is stated by Justice Story on this point, as follows: “The separate estate of the wife will, in equity, be held liable for all the debts, charges, incumbrances, and other engagements which she does expressly or by implication charge thereon.” 2 Story’s Eq. Jur., § 1399. It may be said, this has exclusive reference to property which has been settled on a married woman through the intervention of trustees. It is difficult to perceive why there should be a difference between that kind of property and this which she purchased with her own money taking the deed in her own name. If a court of equity can, in the one case, by a proceeding in rem, subject the one kind of property to the payment of the charge upon it, no reason is perceived why it cannot subject the other kind.
Leaving the question of fraud entirely out of view, here is a case where a feme covert owning real estate in her own right, voluntarily mortgages it, to secure a debt due by her husband. Is it contrary to equity and good conscience that the debt should be paid out of this fund so set apart for that purpose? We can see great justice in it:
But it is objected by the plaintiffs in error, that the bill is not framed for such purpose.
The scope of the bill is known by its allegations and prayer. The allegations are full, and the prayer is, that the defendants may be absolutely barred and foreclosed of and from all right and title in and to the said premises, and may be decreed to join in a conveyance of the same to your orator, and may deliver up to your orator all and every the deeds, etc., and that in default of said Young and wife executing such conveyance, that the master in chancery execute the same, conveying all their interest, etc., and that said Young and wife, and all parties holding said premises through and under them, he decreed to surrender up the possession of said premises to your orator, and for such other and further relief in the premises as the nature of his case may require, etc.
The defendants, in their answer, deny all the fraud with which they are charged, and give a history of the manner in which Mrs. Young acquired the property; that they intend to pay all the money advanced and legal interest, alleging that the whole loan due complainant is not equal to one-fourth the value of the estate mortgaged. They then set up a claim, that the premises were, at the time of giving the trust deed, ever since have been, and still are, the homestead of the defendants and their children, there being a dwelling-house upon it, and occupied as the family residence.
The bill, it would seem, is framed so as to subject this property to the payment of this indebtedness as a charge thereon, in one of the specific modes asked for, or in some other mode which the court might adopt under the general prayer, provided it be not inconsistent with the object and scope of the bill. The plaintiffs in error, in the argument of their counsel, allude to the abandonment of the trust deed by the defendant, and his endeavor to subject the property to this debt as a charge thereon. Ve think this is the strongest view for him to present, but we are constrained to say that it cannot avail him much, as there being no pretense for a strict foreclosure, the property being worth vastly more than the debt, all the court could do would be to order a sale of the premises with redemption. Then comes in the homestead exemption, which Ellen Young has never released or waived, and which, consequently, would prevent a delivery of possession, if a sale was made, whilst she lives, should she become a widow, or until her youngest child shall become of age.
The decree of strict foreclosure is reversed, and a decree here that the premises be sold by the master in chancery of Cook county, on the usual terms, after the usual notice, to pay such sum as he may find, from the testimony and exhibits in the cause, to be due the complainant from Andrew Young, defendant. Sale to be subject to.the claim of a homestead exemption, for the benefit of the defendants, the plaintiffs in error herein.
Decree reversed.