The' judgment of the court was pronounced by
Rost, J.*The plaintiff, as urider-ttttor of the' minor children of tlie late' Agnes Hoggat and of John M. Morris, her husband, seeks to annul an act of mortgage, granted by her, jointly with her husband, upon certain slaves which were her separate property, to secure the payment of a loan made by the Union Bank to her and her husband,-in the course of dealing- authorised by the charter of that institution and in the usual form. The bank filed a general denial; but first excepted to the' action, on the ground that it could' not be maintained by the under-tutor, because the interest of the minors is not in this instance in opposition to that of their father and intof. The' court below, without noticing the exception, gave judgment on the merits in favor of the defendants, and the' plaintiff appealed.
We are utterly unable to discover the object of this suit,- and what end bene-' ficial to the' minors can be attained by it. If the act of mortgage was annulled, the bond in solido, to secure the payment of which it was given, would still remain, and bind all the property of the wife. Leaving the' principal obligation in full force, and attempting to avoid that which is merely accessory to it, is a fancy proceeding in Which minors should not be involved. But there is no pretext for the' action itself. The' powef of attorney given' by the' deceased to Crawford, authorised him' to' exe'cute all the acts of mortgage and obligation that might be necessary or expedient for securing a loan to her husband, and in her name to sign all and singular the instruments that might be requiredby the board of said bank, in order to bind the constituent in solido with her said husband. *586The act of-mortgage in controversy was one of the instruments required by the board of the bank, and its execution by the attorney in fact was strictly within the scope of his authority.
The bank had-nothing to do with the application of the fund borrowed ; and the ground that the rights of Mrs. Morris were not explained to her on that occasion by- the notary, out of tile presence of her husband, is untenable. The 25th section of the charter of the bank removes the disability of married women, and enables them to bind themselves and their property. The law requires that married women should be made acquainted with their rights by the notary, when they-are about to renounce those rights. The bank does not claim under a renunciation of the wife, but upon a direct obligation which she had capacity to contract.
Besides these reasons, Mrs. Morris obtained in her life time a separation of property from her husband, caused the property mortgaged to be sold under her judgment, bought it, and held it, at the time of her death, subject to the bank’s mortgage. It is doubtful whether the'undep-tutor had capacity to maintain the suit, but the case is so clear for the defendants that we have thought it best to-decide it- ’ Judgment affirmed.
Eustis, C. J,¡ being interested, did not sit in this case.