On Petition for a Rehearing.
Howk, J.An earnest petition for a rehearing has been filed in this cause on behalf of the appellant, and the questions thereby presented have been ably and exhaustively discussed by his learned counsel. A single question was considered and decided by this court in the original opinion herein. That ■question, it was held, depended for its proper decision upon the construction to be given by the court to the provisions of section 5119, R. S. 1881, in force since September 19th, 1881, wherein it is thus provided : “A married woman shall not ■enter into any contract of suretyship, whether as indorser, *108guarantor, or in any other manner; and such contract, as to her, shall be void.”
Of the provisions of this section of the statute we say in the original opinion, and we adhere to what is there said, that they are “ too plain to be misunderstood. They positively forbid a married woman to enter into any contract of suretyship, in any manner, and as positively declare that any such contract, as to her, shall be void.” Placing this construction upon the provisions quoted of section 5119, we hold in our original opinion, that where land is held by husband and wife,, as tenants by entireties, and where, since September 19th, 1881, the husband and wife have executed a mortgage on, such land to secure the payment of an individual debt of the husband, such mortgage is, as to the wife, a “ contract of suretyship,” which, the statute says, she “ shall not enter into,” and declares that “ such contract, as to her, shall be void.”' This is the point decided in the original opinion in this cause, and, as yet, we have neither heard nor read any reason or argument which has led us to doubt even the correctness of our decision.
But the appellant’s counsel say in their argument, that if we adhere to our decision in this case, “ then the end is not reached.” Counsel claim that the logic of our decision will require us, when the case shall arise, to hold this: “ That any mortgage of the wife, even of the lands of her husband, in so-far as it binds her interest, is a contract of suretyship within the meaning of the statute, and as to her void.” Such a result, however, is not required by any rule of law or logic of' which we are informed. We need hardly say that there is a wide difference between the contingent interest of the wife in the lands of her husband, and the estate which the wife is seized of in lands held by her and her husband as tenants by entireties. So wide and marked is this difference that the rules of law and the decisions of the courts, in relation to-the estate of husband or wife in lands held by both of them, as tenants by entireties, have not now, and never had, in this *109State, any application whatever to the contingent interest of the wife in the lands of her husband. It has always been the law in this State, that a wife could completely bar her contingent interest in the lands of her husband, by joining with him in the conveyance thereof “ in due form of law.” Section 2491, R. S. 1881; Dunn v. Tousey, 80 Ind. 288. Such contingent interest of the wife in the lands of her husband would never ripen into an estate therein, except in the event she survived her husband, and except, also, since August 24th, 1875, in cases of judicial sales of the husband’s lands where her contingent or inchoate interest was not directed by the judgment to be sold or barred by the sale. Section 2508, R. S. 1881; Taylor v. Stockwell, 66 Ind. 505.
Filed June 27, 1885.Where, however, lands are held by husband and wife as tenants by entireties, the wife as well as the husband is seized of the entire estate in such lands, “per tout and not per my.” Sections 2922 and 2923, R. S. 1881; Davis v. Clark, 26 Ind. 424. The wife can not join with her husband in the execution of a mortgage on such lands, to secure the payment of the husband’s debt; because, in so doing, she necessarily mortgages her own estate in such lands, and thus enters into a “ contract of suretyship ” in some manner, and such contract, as to her, is void under the statute. Allen v. Davis, 99 Ind. 216; Allen v. Davis, post, p. 187.
The petition for a rehearing is overruled, with costs.