delivered the opinion of the Court:
In the month of August, 1867, Melvina Brazee was married' to one Robert Patterson. On the second day of the following September she obtained a conveyance of lot 9, in block 45, of the original plat of the city of Galesburg. The conveyance was to her by the name of Melvina Brazee, which was her name by a former husband, from whom she was divorced. On the same day she executed, by the same name, a deed of trust to O. F. Price, for the use of FT. Brisco, on this lot, to secure the payment of $600, which sum she paid for the lot. On the 8th of September, 1868, she went to one McChesney, an insurance and loan agent, to procure a loan of money, introducing herself as Mrs. Brazee, saying her property was advertised for sale under the trust deed, and she would lose it unless she could procure $600. McChesney stated the facts to R. A. Lawrence. Lawrence offered to loan the money to her if she would secure its payment. The title was examined, and found to be in her name as Brazee, and being asked by McChesney if she was a widow, she answered she was. Being satisfied with the title and security, Lawrence loaned the mone)r, and took two notes, of $300 each, drawing ten per cent interest, executed by her in the name of Melvina Brazee, and also a trust deed on the lot, in the same name. Failing to pay the interest at the expiration of a year, she requested the loan of $40, which Lawrence let her have, and took a note for $100 to cover the interest and this loan, securing the same by a second trust deed, executed in the same manner. Failing to make payment at the end of the second year, the property was advertised and sold under these trust deeds, and purchased by Lawrence for the amount of the debt, interest and costs, and he received a conveyance from the trustee.
It also appears, that Mrs. Patterson took a lease in the name of Brazee, and an agreement, that on the payment of $900 by the 1st of February, 1871, Lawrence would convey the premises to her. On the termination of the lease she refused to surrender possession. Thereupon, Lawrence commenced an action of forcible detainer,, to recover possession, and at the trial she produced the certificate of her marriage to Patterson, which seems to have been the first information which came to Lawrence’s knowledge that she was a married woman, or her name was not Brazee. That suit was dismissed, and a bill in chancery was filed, setting up the facts, charging fraud in procuring the money and in the execution of the trust deeds, and alleging that there was due $798—that the property belonged to Mrs. Patterson, and her husband had no interest therein. The bill charges, that by reason of the fraudulent concealment of her marriage, and the husband not joining in executing the trust deeds, the fee to the lot did not pass by the sale to complainant, and prays that the title be decreed to be in complainant, and for other and further relief.
An answer was filed, admitting that she executed the trust deeds in the name of Brazee because the title was so conveyed to her, and she supposed it was necessary, to convey title; sets up her coverture, and denies all fraud on her part, and the indebtedness is that of the husband, and not of the wife; denies all right to relief. A replication was filed.
On a hearing, the court below, on bill, answer, replication and proofs, found for complainant, found the amount due, and ordered that in default of its payment in thirty days the master sell the lot, on the usual notice, subject to redemption. Defendant, Melvina Patterson, brings the record to this court on error, and asks a reversal.
It is urged in affirmance, and as the court below found, that this loan was obtained by fraud. On the other side it is claimed, and set up in the answer, that plaintiff in error intended, at the time, to execute the trust deeds in such a manner as to be valid and binding—that no fraud was intended and none was perpetrated. McChesney swears positively that he asked her the question whether she was a widow, and she said she was, and that this was before the loan was made; and defendant in error testified that she always represented herself'to him as a single woman. On the contrary, plaintiff in error denies that she ever made such statements to either of them. It is insisted that she is corroborated by Dr. McDowell, with whom she consulted at McChesney’s office, on the day-she says she obtained the money, in reference to the sickness of her husband; but they state McChesney or defendant in error was not present.
This evidence, we think, strongly preponderates in favor of defendant in error. He and McChesney seem to testify fairly. On the other hand, plaintiff in error seems to have, from the beginning, acted in bad faith. She introduced herself to McChesney, and defendant in error says to his family, as Mrs. Brazee. We apprehend no one is so ignorant as not to know, in this country, that the name of the wife is, by the marriage, changed to that of the husband. She, then, must have known, when she passed herself by the name of her former husband, that she was stating' what Avas not true,— that if believed, she Avas deceiving defendant in error,—and that he Avas relying on such statement. She could not have been so ignorant as not to have knoAvn that she was not signing her name to the notes and trust deeds. Why, if not for fraudulent purposes, did she thus give her name and so sign these papers? She says she supposed it was necessary because the deed was in that name. She should have given her true name, and it was a fraud to conceal it. If an unmarried Avoman, a widoAV, using her former name, Avere to so act, Avould not all persons say that such person Avas guilty of fraud ? That concealing their OAvn name and the use of the name of another, or a fictitious name, is evidence of deliberate, intentional fraud? Would any one credit the pretense that the party supposed he was acting properly? Then, why should this be distinguished from the supposed case?
We are clearly of opinion that plaintiff in error was guilty of fraud in misrepresenting her name, in using a fictitious name, and, also, in concealing her name, Avhen she must have lcnoAvn that defendant in error Avould not have loaned the money and taken the trust'deeds, Avithout her husband joining Avith her in their execution, if she had given her true name and disclosed the fact that she was married.
Plaintiff in error testified, her husband told her to come from Burlington to Galesburg and do the best she could; that she transacted the business and got the loan before she returned. When she got back she told him she had transacted her business satisfactorily. Now, it is but a reasonable inference to suppose she consulted with her husband in reference to this business, and it would not be a violent presumption to conclude it was planned and arranged between them that she should pass herself by the name of her former husband in procuring the loan, and this would be more easily done as she was known by that name by her neighbors. It is not probable she would take so important a step without consulting with her husband as to the manner in which it should be done.
We are unable to find any feature in this case that commends it to our sense of right. To permit plaintiff in error to retain the money and property would be unjust in the extreme, and surely can not comport with equity and good conscience. It is not denied that if plaintiff in error intentionally committed a fraud she would be estopped to deny the effect of the execution of the deeds of trust. That she, in fact, committed a fraud, there would seem to be no doubt, and if permitted to escape liability on her deeds, she would have consummated a palpable wrong. She purchases property, borrows money to pay for it by pledging it, and then refuses to pay, and insists that the instruments pledging it are void, although she says she then acted in good faith, and intended to bind the property for the payment of the money.
This court, in the case of Oglesby Goal Company v. Pasco, 79 Ill. 164, reviewed the authorities, and announced the rule that a married woman may preclude herself from denying the truth of her representations in cases of torts, but where her conduct relates to contract, there can be no estoppel. So, in the cases of Schwartz v. Saunders, 46 Ill. 18, and Anderson v. Armstead, 69 id. 452, it was held that where a wife fraudulently permitted her husband to represent himself as the owner of her separate property, and procure mechanics to make valuable improvements thereon, without disclosing her ownership or repudiating his authority, she is estopped after-wards from denying his authority to cause the improvements to be made, when the mechanics seek to enforce their liens for payment of the amount due them for work done on the faith of the husband’s authority.
The true doctrine is, that contracts and agreements of married women in reference to their real estate, when' not joined therein by their husbands, where-such agreement is free from fraud, can not be enforced at law or in equity. But where married women make such contracts or agreements by fraudulent means, and thus obtain inequitable advantages, a court of chancery will hold them estopped from setting up and relying on their coverture to retain the advantage. The court will require them to execute and perform the contract, if executory, or prevent them from avoiding it if executed, or will compel them to place the other party in statu quo before they will be allowed to rescind or repudiate such agreements or contracts. Whether the one or the other form of relief will be granted, must depend upon the equities of the case.
Here, plaintiff in error, by fraudulently concealing her marriage, and by declaring she was a widow when asked the question by the agent of defendant in error, gained an inequitable and unjust advantage of defendant in error, if she shall be permitted to retain the money she thus obtained and also to recover the land. She must be held to pay the money, or a lien for the same will be enforced against the premises she professed to mortgage to secure its payment. She must be held estopped from relying on her coverture to escape its payment.
We perceive no error in the record, and the decree of the court below must be affirmed.
Decree affirmed.