Greenholtz v. Haeffer

Brent, J., delivered the opinion of the Court. On the 8th of September, 1866, Mrs. Anna Greenholtz, then and now the wife of James W. Greenholtz, executed to Emanuel Burns two single hills each for $450, one payable on the 1st day of September, 1868, with interest from the 1st of September, 1866, and the other payable on the 1st of September, 1869, with interest also from the 1st of September, 1866. To secure the payment of these notes she executed to said Burns at the same time what purports to he a mortgage upon certain lots belonging to her as her separate property and lying in Manchester, Carroll County. The husband did not join in the execution of the notes or mortgage.

The weight of the testimony establishes the fact that the only consideration of these notes was a balance due by the husband for a milk route, which he, some time before, had purchased. After assignments and re-assignments the claim against Mrs. Greenholtz finally came into the hands of the appellee, who filed his hill to subject the lots mentioned to its payment. We do not understand that it is contended on the part of the appellee that the paper signed by Mrs. Greenholtz can he enforced as a mortgage. On the contrary the allegation in the hill of complaint is, “ that whilst said paper purporting and intended to he a mortgage is not, and the said single hills are not, binding on and enforceable against the said Anna Greenholtz as such, by reason of her coverture, yet the same are evidence of a contract on her part, enforceable against said parcel of land and premises, as her separate estate in equity.” ¹⁸⁶ There can he no question that the only mode in which the wife can convey her' real estate is in the manner directed in the 11th section of Article 45 of the Code.

To render such a conveyance valid the husband must join in the conveyance, whether the same be absolute