Johns v. Reardon

Tuck, J., delivered the opinion of this court. The property of Mrs. Reardon, conveyed to Johns, was not her separate estate, which she could bind in equity, but her estate at law, of which she could not be divested, except in the mode prescribed by our acts of Assembly, to pass the real estate of a feme covert. Chaney vs. Tipton, 3 Gill, 327 . As that deed was not acknowledged according to law, it was wholly inoperative as to her, and must be dealt with as if she had not been a party to it; and then the parties stand in this predicament, Johns held a mortgage of the property as if executed by James Reardon alone, and Scott a mortgage on the same property, executed in due form of law by Reardon and wife; this latter deed, according to the previous decision in this case, having priority over the other.

In this aspect, Mrs. Reardon stands as surety to Scott, under a mortgage of her property, for a debt of her husband, but she never made a ⁴⁷⁰ valid deed binding her property for the payment of his debt to Johns. The proceeds of sale of both estates being in court, and Scott’s priority acknowledged, the appellant claims payment of his claim out of the residue, as far as it will go, while Mrs. Reardon insists, that he has no right which a court of equity will sanction as against her. The argument on the part of the appellant, that Mrs. Rear-don having executed the mortgage to Scott with knowledge of the deed to Johns for the same property, must be bound as a creditor or incumbrancer with notice of a prior equity, would, if allowed, defeat the object and policy of the law in relation to the estates of married women, by treating them sui juris. The Legislature has provided how they may dispose of their real