Webb v. Hoselton. filing on the same land, which was valued by the parties at $400. 2. Improvements on the land above referred to, which Hoselton had placed thereon, consisting of a house, a stable, a well and about twenty acres of breaking which were valued by the parties at $265.00. One span of horses and harness valued by the parties at $300.00. One mowing machine valued by the parties at $135.00. One breaking plow valued by the parties at $25.00. One hay rack valued by the parties at $7.00. One lay rake valued by the parties at $10.00; total, $1142.00. How the other $8.00, was made up does not appear. Sixth. That the defendant Hoselton did relinquish his pre-emption filing and turned over his possession of the land with the improvements thereon and all of the personal property above referred to, to the plaintiff. who took possession of the same sometime between the middle and last of February, 1873. Seventh. That the plaintiff remained in the possession of the land and premises until about the 12th of March, 1873, when she abandoned the possession of the same and moved to the city of Lincoln, Nebraska. Eighth. That while she was in possession of said land and premises she either lost or disposed of all the personal property turned over to her by the defendant Hoselton. Ninth. That immediately upon the abandonment of the land by the plaintiff, the defendant Hoselton made a homestead filing on the south half of the premises. which the plaintiff had abandoned, in his own name and for his own benefit. That all the improvements on the land turned over by Hoselton, to the plaintiff were on the south half and that immediately upon abandonment of the land by the plaintiff, the defendant Hoselton, took possession of the house and all the improvements on said land as his own, and holds them for his own benefit. Webb v. Hoselton. Tenth. That the plaintiff at the time she executed the note, mortgage, and trust deed, was in the possession of the premises described in said trust deed and ever since has been and now is in possession of the same. Eleventh. That at the time plaintiff purchased the pre-emption filing, improvements, and personal property for which the mortgage was given she supposed she could take a pre-emption filing in her own name, and that she was led to this conclusion by representations of defendant, Hoselton, and that Hoselton at the time of the sale supposed she could. That Hoselton is not a lawyer and did not claim to be, but he did claim to be familiar with the laws of Congress pertaining to preemptions, and the rules and practice under these laws. Twelfth. That at the time Hoselton delivered over the property and land to the possession of the plaintiff, he did what he could to cancel his own filing and with the knowledge and consent of the plaintiff procured a pre-emption filing on the land in the name of B. G. Webb, who is the husband of the plaintiff. Thirteenth. That at the time plaintiff executed the trust deed, she did not understand its full scope and effect, but she might, had she exercised reasonable prudence, diligence, and care, and that the defendant Hoselton, was not guilty of any active fraud in her being misled as to its contents. As conclusions of law the referee found: First. The note having been given by a married woman is void at law, and the payment of it can only be enforced if at all by a proceeding in equity; hence, it follows that any defense which can be made against the payee is equally available against the indorser of the note, and that the plaintiff is entitled to claim similar relief in this action that she would be, had an action been brought on the note. Second. The sale of the pre-emption right was abso Webb v. Hoselton. lutely void by the law of Congress which provides that all assignments and transfers of the rights hereby "secured" (meaning the pre-emption right) prior to the issuing of the patent shall be null and void. Third. It being agreed that the value of the preemption right should be $400 and the transfer of the same being absolutely void, so much of the considera tion for which the note was given has completely failed, and this amount with interest should be deducted from the note. Fourth. The question as to what should be done with the value of the improvements is one more difficult for me satisfactorily to determine, especially as our legis lature seems inclined to sever, so to speak, the improvements from the land and make them the legitimate subject of sale and transfer. But as the contracts of married women are as a rule enforced on only equit able grounds, I think these also should be deducted. will not be contended that there is any equity in compelling the plaintiff to pay the defendant Hoselton, for improvements from which she never has and never can derive one particle of benefit, and in the ownership and possession of which he has in no sense been injured. The improvements amount to $265.00, which amount would be deducted from the note. It Fifth. The personal property which the defendant Hoselton, transferred and delivered to the plaintiff and which she lost or disposed of she should pay for; this amounts in the aggregate to $477.00 with interest from the date of the note, which amount is a valid and subsisting lien on the premises described in the trust deed and upon the payment of said last mentioned sum together with the costs of this action, the plaintiff is entitled to have said note surrendered up and the mortgage and trust deed canceled. Exceptions to the report of the referee were filed, and Webb v. Hoselton. being sustained, judgment was rendered dismissing the petition, to reverse which the cause was brought here by petition in error. Tuttle & Harwood, and Groff & Ames (with whom was also E. E. Brown), for plaintiff in error. I. A trust deed given as security for a debt, and for no other purpose, merely performs the office of a mortgage, and is in legal and equitable effect nothing else than a mortgage. 4 Kent., 160, 193. Powell on Mortgages, 9. 1 Hilliard on Mortgages, 40. Woodruff v. Robb, 19 Ohio, 212. And an assignee of a mortgage takes subject to all equities existing against it at the time of assignment. Bailey v. Smith, 14 Ohio, 396. Walker v. Dement, 42 Ill., 272. Johnson v. Carpenter, 7 Minn., 176. II. Has our statute changed the common law rule? Has it taken away the shield which the common law gave to a married woman, and does it make her liable at law for her contracts, general in their character, and which in no way refer to her separate property? We think not. The furthest that any of the decisions go is to hold that she may create a lien that may be satisfied out of her separate property by proceedings in equity. Phillips v. Graves, 20 Ohio State, 371. Worthington v. Young, 6 Ohio, 335. The disability of a married woman to contract is removed by the statute only in those cases where she contracts in reference to her real and personal property. The giving of a negotiable promissory note is not a contract of this character. Yale v. Dederer, 18 New York, 265. Id., 22 New York, 450. Corn Exchange v. Babcock, 42 New York, 450. Lamb & Billingsley, for defendants Monell & Lashley, Webb v. Hoselton. in contending that the referee erred in his first conclusion of law, cited Chapman v. Foster, 6 Allen, 136. Estabrook v. Earle, 97 Mass., 302. Deering v. Boyle, S Kan., 525. Wicks v. Mitchell, 9 Id., 80. Whitesides v. Cannon, 23 Mo., 457. Baker v. Gregory, 28 Ala., 544. Sheldon v. Clancy, 42 How. Pr., 186. Where the note is the principal and the mortgage the incident, if the deed of trust be regarded only as a mortgage, the note and deed of trust would not be open to equities in the hands of third parties when taken before due for value without notice. Carpenter v. Longan, 16 Wallace, 371. Foster v. Otis, 3 Chandler, 83. Bloomer v. Henderson, 8 Mich., 395. Potts v. Blackwell, 5 Jones Eq., 58. Pierce v. Faunce, 47 Me., 507. MAXWELL, J. At common law the husband and wife are treated as one person, that is, the legal existence of the wife is suspended during marriage, and she becomes incapable of making a valid contract to bind either herself or her estate. Equity, however, following the rules of the civil law, treats the husband and wife as distinct persons, capable of having separate estates, debts and interests, and regards a married woman as to her separate property as a feme sole. And the fact that the debt has been contracted during coverture, either as principal or as surety for herself or husband, or jointly with him, seems ordinarily to be held prima facie evidence of intention to charge her separate estate, without any proof of a positive agreement or intention to do so. Balpin v. Clarke, 17 Ves., 365. Story's Eq., 1400. Murry v. Beebe, 4 Sim., 82. Owens v. Dickerson, 1 Craig & Ph., 48. North v. Turrill, 2 P. Wm., 144. Our statute provides that "a married woman, while the marriage relation subsists, may bargain, sell and convey, her real and personal property, and enter into any con |