#### Petty v. Grisard.

1. Married Women : Mortgage for husband's debt.

A married woman may mortgage her real estate for her husband’s debts.

2. Acknowledgment of Deeds : Certificate, when conchisive.

The maker of a deed may prove that there was no appearance before an officer to acknowledge it, and no acknowledgment in fact, but if he did acknowledge it in some manner the officer’s certificate is conclusive of the terms of acknowledgment.

3. Mortgage : Refusal of mortagee to makefurther advances.

Grisard obtained from Petty and wife a mortgage on her land and his personal property, for a pre-existing debt of his, and for future supplies, by promising to sell him supplies to make a crop. Afterwards Grisard ascertained that other merchants held a prior mortgage on the personal property and he refused to sell him the supplies until this incumbrance should be discharged. Finally it was agreed that Grisard should release his mortgage on the personal property and the other merchants should furnish the supplies, and this was done without any additional expense or inconvenience to Petty: Held, that Grisard’s refusal to furnish the supplies did not release the mortgage on the land for the old debt.

APPEAL from Faulkner Circuit Court, in chancery.

Hon. F. T. Vaughan, Circuit Judge.

P. FI. Prince for Appellants.

The execution of a note for a husband’s debts does not bind the separate property of the wife. 33 Ark., 363.

As Grisard agreed to furnish certain supplies, which were the consideration of the mortgage, and failed and refused so to do, the consideration failed, or rather never existed. He is at fault and should be forced to place her where she was before executing the mortgage. Reporter, Vol. X, p. ‡20; Jones on Real Mortg., 3d Ed., Sec. 612.

The failure to furnish the supplies, as agreed, was a fraud upon Mrs. Petty, which avoided the mortgage. 3‡ Ark., 63.

*118When a married woman mortgages her separate property to secure the debt of her husband, and such mortgage is procured by misrepresentations, she may defend against a suit to foreclose. Am. Law Reg., 0. S. Vol. VIII, p. pjp. The fraud invalidates the mortgage ab initio. Jones Real Mortg., Vol. I, Sec. 02‡, 2d Ed; Gross v. McKee, pp Miss., pp6. Contends that the Alabama case is distinguishable from this, 60 Ala., 288, and that the Mississippi case enunciates the better doctrine.

E. .A Bolton for Appellees.

A married woman may mortgage or sell her separate estate to pay her husband’s debts, pp Ark., iy; pp Id., p8o; Bishop on Married Women, Sec. 6op; Jones on Mortg., Vol. I, Sec. up.

Under the constitution of 1874 a married woman may dispose of her estate as if' sole, and there is no restraint on the incumbrance of a homestead, pó Ark., p86; lb., ppp.

As to the acknowledgment made by Mrs. Petty, the certificate of the magistrate is conclusive, pi Ark., p2i.

The facts in this case fail to show any fraud. ’ It was mutually agreed that Boothe & Wright should furnish the supplies, and appellee released his mortgage on Petty’s crop in pursuance of said agreement. It is not shown that Grisard never intended to furnish the supplies, or that he intended to get security ior his debt, and then refuse to furnish the supplies, or that he so intended at the time the mortgage was executed. See 60 Ala., 288; Jones on Mortgages, Sec. 02p.

Smith, J.

This was a bill by husband and wife to annul a mortgage executed by them, and also a sale and conveyance of the mortgaged land, pursuant to a power contained therein. But the circuit court dismissed the bill, sustained the mortgage and confirmed the sale made thereunder.

*119To this decree it is objected that the debt which the mortgage was given to secure was the debt of the husband, while the mortgaged property was by statute the separate estate of the wife.

Since the cases of Collins v. Wassell, 34. Ark., 17, and Scott v. Ward, 35 Id., 480, the law must be considered as settled in this State that a married woman may mortgage her real estate for her husband’s debts.

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It is further objected that the land was Mrs. Petty’s homestead. But it is not perceived how this can affect the decision. The mortgage was made in the year 1881. And the constitution and laws then in force imposed no restraints upon the alienation or incumbering of the homestead.

Another objection was that Mrs. Petty never acknowledged before the officer that she had executed the mortgage of her own free will and accord. The certificate of the justice of the peace is in proper form. And it is shown by the testimony of Mrs. Petty herself, as well as by other evidence, that she did appear in person before him in the absence of her husband and make some sort of acknowledgment of this instrument. The case is thus brought within .the rule of Meyer v. Gossett, 38 Ark., 377, followed in Donohoe v. Mills, 41 Ark., 421. That rule is this: While it is competent for the maker of a deed to prove that there was no appearance before an officer to acknowledge its execution and no acknowledgment in fact, yet if he did acknowledge it in some manner, the officer’s certificate is conclusive as to the terms of that acknowledgment.

edgment ^Certificate of. si^'hen conclu

But the principal point of contention is the alleged fraud of Grisard in procuring this mortgage security and total failure on his part to perform certain promises by means of which he induced Mrs. Petty to give it. The evidence conduces to prove the following state of facts: In the year 1879 there was an incumbrance upon the land in favor of one Atkinson, amount-*120to $178. Grisard, at Petty’s request, paid this off and took an absolute deed to himself, which, however, was only intended for a security. In 1881 Grisard, who was a merchant, furnished supplies to Petty upon the security of a mortgage upon the same land. Mrs. Petty joined both in the deed and in the mortgage, but owing to Grisard’s ignorance of the true state of the title, or the unskillfulness of the draughtsman, these instruments only purported to convey Mrs. Petty’s possibility of dower. As she was the owner of the land in her own right, she had no right of dower, and the supposed securities were worthless. In December, 1881, Petty owed Grisard $555, and for this sum he and his wife made their promissory note, payable November 1, 1882. To secure payment of the same, as well as all other indebtedness that they or either of them might owe Grisard for goods thereafter to be purchased, they mortgaged the land, a mule and wagon and the crop to be raised by Petty during the year 1882. It was distinctly understood that Grisard was to sell Petty such farm supplies as he might need during the year, estimated to be of the value of $350, upon the faith of this mortgage. And this was no doubt the.controlling consideration which influenced Mrs. Petty to pledge her land. Grisard soon .ascertained, however, that there was a prior incumbrance on the mule and wagon, held by a firm of merchants, who were engaged in business in the same village. He insisted that Petty should pay off this incumbrance before he would let him have any supplies. Finally it was arranged between the parties that Grisard should release his mortgage upon the crop; that the holders of the previous incumbrance upon the mule and wagon should also take a mortgage upon Petty’s crop, and furnish Petty the supplies he needed. This arrangement was carried out apparently to the satisfaction of all concerned. The merchants, who were substituted in Grisard’s place, sold Petty goods to the amount of $415. Grisard furnished Petty no supplies in that year; but *121his old debt remaining unpaid at the expiration of the term oí credit, he advertised and sold the land.

*119 ^iromUed adgage^reLsed!1"

*121In Gross v. McKee, 53 Miss., 536, it was adjudged to be fraudulent in a creditor to obtain a security for a pre-existing debt under a promise to make further advances, which promise he had no intention to keep and did not keep. But in Johnson v Murphy, 60 Ala., 288, it was ruled that the breach of such a promise, although it might support an action at law, or a plea of set-off to the extent of the injury actually sustained, was no ground for the cancellation of the mortgage for fraud.

We have no occasion to decide here which of these two apparently conflicting cases announce the better rule. There is no reason to believe that Grisard, when he took the mortgage, did not intend in good faith to perform his agreement with the Pettys, nor that they lost anything by his failure to do so, or incurred additional expense or inconvenience in procuring necessary supplies to enable them to make a crop. We may regard the supplies as having been actually furnished through the instrumentality of Grisard; for he released his mortgage upon the crop only upon condition that the other firm would fulfill his contract in that behalf.

Decree affirmed.