
    Mary K. James vs. Alvarez Fisk et al.
    Where in a suit against husband and wife, to foreclose a mortgage upon the separate estate of the wife, given to secure a debt of the husband, a decree pro confesso is rendered, it will not be sufficient ground to sustain a bill of review, at the instance of the wife, to set aside the decree, that her husband fraudulently concealed from her the extent and character of the mortgage, kept her ignorant of the nature of the suit against her, and told her it was mere form, and would not affect her rights; to affect the validity of the decree the other party to the suit must have participated in these frauds.
    The wife may deal with her husband or with her trustee, in regard to her separate estate, may go surety for her husband, mortgage her estate to secure his debt, direct a release by the trustee, &c., but all such transactions will be watched with jealousy.
    Whether a married woman, as to her separate estate, is a feme sole, or has no powers but those conferred by the instrument under which_she claims, quaere ?
    
    If the conveyance of a feme covert be not executed according to the forms prescribed by statute, it is not valid.
    It seems that married women, in this state, may convey their separate estate by deed, properly acknowledged ; and by such deed pass their entire estate.
    The clerks of the probate courts have full power, under their official seal, to take and certify acknowledgments of deeds by feme coverts, and other persons ; the statute conferring the power of “ making proof or acknowledgment of deeds ” upon clerks of courts of record, embraces probate courts ; and is to be construed as to the extent of power conferred, in connection with the former statute on the subject of such acknowledgments, and fully authorizes clerks of courts of record to take acknowledgment of the deeds of married women, wherein they convey their separate estate.
    In a suit to foreclose a mortgage, where only part of the debt is due, it is error to decree a sale of the entire mortgage property, when divisible, to pay the instalment due, and direct the residue of the proceeds of sale to be paid into court, to be appropriated to the payment of the other notes as they become due ; the decree in such suit should order only so much of the property sold as will pay the mortgage debt actually due, at the time of rendering the decree, where the property is capable of division.
    
      A bill of review lies to correct an error in the body of the decree, apparent upon the face of it; and is therefore a proper proceeding to set aside a decree ordering a sale of mortgaged premises, capable of division, to pay the whole mortgage debt, when only a small part of that debt was due.
    Appeal from an interlocutory decree of the superior court of chancery, dissolving an injunction ; Hon. Robert H. Buckner, chancellor.
    Mary K. James filed in the court below her bill to review a decree of that court, obtained against herself and others by Alvarez Fisk, directing the foreclosure of a mortgage executed by herself and husband. She stated that on the 16th day of February, 1837, she made a marriage contract with Joshua James, whom she afterwards married, by which her separate estate was settled on her, through Thomas Bernard, her trustee, and by which she was authorized “ to give, grant, sell, dispose and convey her said estate', real and personal, as she should in any manner think fit arid proper.” That her husband, and Bernard, as his surety, became indebted, in June, 1840, to Fisk in large sums, to secure the payment of which she was enticed to unite with them in joint notes to Fisk, and to execute in conjunction with them a mortgage on her separate property, to secure the notes. That she never read, or heard read, the mortgage ; and only executed it on. the positive assurance of her husband, that it nowise affected her interests; that she was ignorant of the legal effect of her acts. That on the maturity of one of the notes, Fisk filed his bill in chancery, and obtained a decree of foreclosure against her, upon pro confesso, in January, 1842. That when service of process was made upon her she was ill, and her husband assured her it was mere matter of form, in which she had no interest. That the decree was rendered by collusion between Bernard, her husband and Fisk. That Fisk'knew she was a feme covert, and had been fraudulently persuaded to join in the notes and mortgage; and she insists that these facts entitle her to a review and annulment of the decree of foreclosure; from selling under which she prays that Fisk may be enjoined; and that her notes and mortgage may be cancelled.
    
      The deed of marriage settlement was acknowledged before the clerk of the probate court of Adams county, and a certificate of acknowledgment under the seal of the court appended thereto by him. The deed was executed, and the acknowledgment by Mrs. James was certified to have been made by her, by her maiden name of Mary K. Johnson.
    The mortgage deed, executed by Joshua James, Mary K. James, and Thomas Bernard, as trustee, was also acknowledged, before the clerk of the probate court, who certified that Mrs. James, on being by him “examined, separate and apart from her husband, the said Joshua James, acknowledged that she signed, sealed and delivered the foregoing deed to said Alvarez Fisk, as her own voluntary act and deed, freely, and without the fear, threats or compulsion of her said husband.”
    By this mortgage, executed on the 17th of June, 1840, a large tract of land, in cultivation, and forty negroes, were conveyed to secure to Fisk four notes, each for the sum of $4383, due, respectively, one, two, three, and four years after the 1st of June, 1840.
    The bill to foreclose was filed on the 8th of June, 1841, and the same day process served on Bernard. On the 15th of November, 1841, personal service was made on James and wife. On the 8th of January, 1842, the bill taken for confessed against all, and on the same day referred to a master to compute interest, who on the 15th January, 1842, reported $4602 to be due. The report was confirmed, and on the 28 th of February, 1842, a decree of foreclosure and sale signed. By this decree it was ordered that the whole mortgaged property, real and personal, be sold by a commissioner, and bonds for the purchase-money taken, according to statute, unless the amount reported to be due were paid within ten days from the date of the decree, and that “in case of the collection upon execution, as provided b3r the statute of this state, of an amount of money on any bond herein directed and required to be taken by said commissioner, exceeding the amoun.t due to complainant upon said first note mentioned in said mortgage, and filed with complainant’s bill, with interest and costs, prior to the falling due or maturity of said second, or third, or fourth notes, named in said deed of mortgage, and above herein referred to, then such excess shall remain in the custody and charge of this court, and subject to the future and final orders of this court, after such second, and third, and fourth notes shall have matured respectively ; and this decree shall stand as a security for the payment and appropriation thereof, according to the usual decree of this court.” This is all of the decree and other proceedings at the suit of Fisk, the review of which was sought, which it is deemed necessary to notice.
    Fisk and Bernard answered the bill of review, and denied all fraud and combination. The answer of Fisk set up other matters, which need not be set forth.
    The chancellor, on this state of pleadings, no proof being taken on either side, dissolved the injunction on the motion of Fislc, and Mrs. James, by petition to Chief Justice Sharkey, obtained an order for an appeal from the decree of dissolution.
    
      Quitman and McMurran, for appellant.
    1. On the point that no title passed from Mrs. James under the mortgage. Mrs. James, although, by marriage contract, property was set apart to her for her separate use, was and is a feme covert.
    
    The act of 1822, (How. & Hutch. 347, § 19,) declares that no estate of a feme covert in any lands, tenements, and heredi-taments, &c., shall pass by her deed, or conveyance, without a previous acknowledgment, &c., before a judge of the supreme court, a justice of the county court, or a justice of the peace, &c.
    The phraseology of this act is strong; it is intended to protect strictly the rights of married women. No estate of a married woman can pass, without this private examination by a judicial officer. The language of the act is positive and prohibitory.
    But it is contended that the act of December, 1833, (How. & Hutch. 368,) extends the right of making such separate examinations to clerks. It cannot be pretended that this act repeals the former disabling act. The fair interpretation of the latter act of 1833 is, that proofs or acknowledgments of deeds may be made before clerks and the other officers therein named, to entitle them to record ; but there is no expression in the act, that it was intended to give validity to deeds which otherwise would have none. “ It shall be lawful to' make proof or acknowledgment of deeds of conveyance,” &c., is the language of the law; not that conveyances, in which such proof is made, shall be valid.
    If, therefore, a deed is not valid without such proof, there is nothing in this law which gives it additional force. See also the act of 1841.
    The act of '1822 was intended for the protection of married women from the undue influence of their husbands. It applies to the conveyances of all married women, as well, those who have separate property as others. The reason for such protection to femes covert, having separate property, is even stronger than where they have none. When they have a separate estate, there is more likelihood of attempts at improper influences, than where their rights are under the protection of the husband.
    2. We insist that the decree of sale is erroneous.
    1st. That it directs the property to be sold for cash.
    2d. That without one particle of proof showing the propriety of such a sale, it requires the whole estate and slaves to be sold in gross.
    3d. That it directs interest upon the bonds to be taken on sale, at eight per cent.
    4th. That it directs interest at eight per cent, to be calculated on the amount reported by the master as due on the mortgage.
    5th. That it directs the excess over and above the amount due as reported, to be paid into court, there to await the maturity of the remaining notes secured by the mortgage,
    The prayer of the bill does not warrant such relief.
    
      George S. Yerger, for appellees.
    1. The complainant voluntarily became security for her husband and executed the mortgage of her separate property, which she had ample power to do. All fraud is denied. In such case her separate property is bound. 2 Gill & John. Rep. 1; 1 Equity Digest, 249; 3 John. Ch. Rep. 120.
    2. The process being served on her and her ..husband, and pro confesso taken against them both, is as conclusive on her as to her separate property, as if she were sole. 1 Dev. Eq. Rep. 500.
    When husband and wife are proceeded against for her separate property, service must be on her and she be proceeded against, as if sole. Notes to Dubois v. Hole, 2 Yernon, 613 ; 1 Paige, 422 ; 2 John. Ch. Rep. 139; 9 Yesey, 486; Clancy on Married Women, 359, 360.
    3. A bill of review will not lie for irregularities in process, but only for errors of law in the decree. Story’s Equity Pleading, sec. 404, et seq.
    
    4. If her bill could be sustained, she must account for the value of the improvements made by her husband on the property. 1 John. Ch. Rep. 450.
    Eustis, on same side.
    1. A feme covert is bound by a decree .equally as if sole. Bradstreet v. Clarke, 12 Wend. 602; Martin v. Martin's heirs, 5 Mart. La. Rep. N. S. 165; Dubois v. Hole, 2 Yern. 613; Broussard v. Bernard, 7 La. Rep. 216, 223; Iredell Eq. Rep. 500; 1 Smith Ch. Prac. 101-537.
    2. The record of Fisk v. James shows that the complainant in that case took his pro confesso under the rules of the court. He was entitled to his decree. It is too late to make objections, which would have been in their proper place as a defence in that cause.
    3. The fraud and misrepresentation of the husband to the wife, cannot affect the claim of that complainant. Is it ground for new trial, that some third person told the applicant that the writ, duly served upon him, was a “mere matter of form”'? Does it change the legal question, that the parties are husband and wife ?
    
      4. But. suppose the whole question open. Can there be any doubt of the power to execute and the regularity of the execution of the mortgage, foreclosed by Fisk ? The settlement made no mention of children — born or to be born. No new rights whatever arose from the instrument. The only person guarded against was James, the future husband. The plain object was to guard against alienation by him of the property of the person he was about to marry. There is no provision that she shall not have power to convey it; on the contrary it is expressly framed with a view to enable her to dispose of it by will or by deed —■ one thing only being required — that her trustee, Bernard, should join. She was privily examined, and signed and sealed the mortgage in due form of law. This conveyed her interest. Her trustee, who held the legal title, also executed the deed.
    The weight of authority, both English and American, places & feme covert, in regard to her separate estate, upon the same footing with a feme sole. Allen v. Papiuorth, 1 Yes. Sen. 163; Stanford v. Marshall, 2 Atk. 69; Qrighy v. Cox, 1 Yes. Sen. 517 -18; Wagstaff v. Smith, 9 Yes. 520; Sturgis v. Corp, 13 Yes. 189; Demarest v. Wynkoop, 3 John. Ch. Rep. 129; Vizonneau v. Pegram, 2 Leigh, 183 ; Jacques v. Methodist Episcopal Church, 17 John. Rep. 548; Durnford v. Lane, 1 Bro. C. C. 106; 6 Wend. 1st case.
   Mr. Justice Clayton

delivered the opinion of-the court.

The complainant,. Mrs. James, before her marriage, conveyed all her estate, real and personal, to Bernard, as trustee, for her own sole and separate use, free from the control, contracts and debts of her intended husband, but with unlimited power of disposition over it, upon her part, either by deed or by will. Several years after the marriage, her husband being largely indebted to Fisk, and Bernard, the trustee, being bound with him as surety; an agreement was made, by which an indulgence of several years was granted to the husband, and Mrs. James became bound in the notes with him, and gave a mortgage upon all her estate to secure the payment. After the first note became due a bill was filed to foreclose the mortgage, and a decree entered to that effect upon a pro confesso against the present complainant. She subsequently filed this bill, in the nature of a bill of review, to enjoin this decree, and to set it aside upon the ground of fraud in obtaining it, and for the reason that she had not executed and acknowledged the mortgage in a way which could pass her right, and for other errors apparent upon the face of the decree.

The alleged ground of fraud in obtaining the decree is, that her husband concealed the extent and character of the mortgage, and when the process was served upon her kept her ignorant of the nature of the proceeding, and assured her that it was mere matter of form, and could in no manner affect her rights. If these facts were established, they would not be sufficient to set aside the decree, unless it was obtained by a combination between the other party and her husband, in fraud of her rights. Green v. Branton, 1 Dev. Eq. 500. The fraud of her husband could not avail to that end, without the participation of the other party. It would have been easy for her to have consulted her trustee, or to have taken the advice of counsel.

A wife may deal with her husband, or with her trustee, in regard to her separate estate, but in either case the transaction will be watched with jealousy. Clancy, 347, 855. There is in this case no evidence of undue influence, or improper conduct on the part of either. The naked facts of the case —the release of the trustee and the binding of her estate — cast a strong shade of suspicion over the transaction, but there is no proof in aid of it, and a decree cannot be made upon suspicion alone.

The power reserved to Mrs. James by the settlement is of the most unlimited extent. She is authorized “ to give, grant, sell, dispose of and convey her said estate, real and personal, as she shall in any manner think fit and proper. This case steers clear of the point, so often discussed, whether a married woman is as to her separate estate a feme sole, or whether she has no powers but those conferred upon her by the instrument under which she claims. See Morgan v. Elam, 4 Yerger, 375. The power here expressly reserved is sufficient to support the mortgage, provided the forms prescribed for the acknowledgment of conveyances by femes covert have been complied with.

It is said in argument that they have.not been. The general rule no doubt is, that if the conveyance of a feme covert be not executed according to the forms prescribed by statute, it is not valid. Elliott v. Piersol, 1 Peters, 328; Hepburn v. Dubois, 12 Peters, 345; West v. West, 10 Serg. & Rawle, 445. The objection in this case is, that the acknowledgment of the deed and privy examination of the complainant, was not had before the proper officer. The first statute on this subject enacts “ That no estate of a feme covert in lands shall pass by her deed or conveyance, without a previous acknowledgment made by her, on a private examination, apart from her husband, before a judge of the supreme court, a justice of the county court, or justice of the péace.” How. & Hutch. 347, § 19. The only other statute necessary to be noticed, provides that, “Hereafter it shall be lawful to make proof or acknowledgment of deeds, before any judge of the high court of errors and appeals, judge of the circuit courts, judge of probate, notary public, or clerk of any court of record in this state, and such proof or acknowledgment shall entitle the same to record in the county where the land conveyed may lie.” Ib. 368, § 99. The privy examination in this case was taken and certified by the clerk of the probate court, and it is urged that, the act confers no such power on him. It is true that the latter get is not so explicit as to the powers and duties of the several officers referred to, as the first, yet we think its scope and object are sufficiently plain. The change in the constitution after the first act was passed, had put several of the officers therein enumerated, out of existence. Public convenience required that others should be substituted. The aim and intention'of the last law were to confer the authority on a greater number of officers, and to invest them with the same powers which were conferred by the first act. The two are to be construed together, and taken as parts of one whole, there being no inconsistency between them. The objection cannot prevail.

The last ground of objection which will be considered, is, that there are errors apparent upon the face of the decree itself, for which it ought to be reviewed and reversed.

The original bill of Fisk set forth, that there were four promissory notes secured by the mortgage, due in four annual, equal instalments; and that one of the notes was due and unpaid. The decree recites the same facts. It then goes on to direct a sale of all the property conveyed by the mortgage, consisting of a tract of land and some forty slaves, on a credit of six months, and to decree out of the money first collected, payment of the note first due; and farther to decree that any balance beyond what will pay the amount due on the first note, shall be paid into court, and appropriated to the payment of the other notes as they become due.

This was clearly erroneous. The creditor had a right to foreclose only for the debt due at the time of the bill filed; he was therefore entitled to a decree of sale only to that extent; or for the amount due at the time of rendering the decree, if more became due in the interim. 1 Smith’s Ch. Pr. 530, notes.

The debtor might be able to pay the other instalments as they became due, and thus there might be no necessity to sell for the satisfaction of the other notes. The increase in value of the property might amount to more than the interest of the money bid at the sale, and the mortgagor ought not to be deprived of this advantage.

Can this error be corrected by bill of review? The first ordinance of Lord Chancellor Bacon, on which the whole doctrine of bills of review rests, directs that no decree shall be reversed, or altered, or explained, being once under the great seal, but upon bill of review: and no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without further examination of matters of fact, or some new matter,” &c. See also 3 How. 292, 377; and 10 Yerg. 44, 56. This is an error of that character. The decree directs an amount of property to be sold, far beyond what is necessary to satisfy the debt due at the time. For this reason it must be reversed, and the cause remanded.

Mr. Justice Thacher having been of counsel, gave no opinion.  