
    The Aetna Life Insurance Company v. Franks.
    1. Homestead: mortgage: husband and •wife. A mortgage on the homestead, to which the signature of the wife was procured by the fraud of her husband, cannot be held invalid on that ground, where the fraud was not shared in, or known to, the mortgagee. In the absence of fraud on his part, or mutual mistake, the want of concurrence necessary to invalidate the instrument must be apparent on its face. Following Edgell v. Hagens et ux., ante, 223.
    
      Appeal from Jones Circuit Court.
    
    Wednesday, June 9.
    Action to foreclose a mortgage executed by E. M. Franks, now deceased, and by his wife, the defendant, Sarah D. Franks. Tbe mortgage covers a large quantity of land in Jones county, including wbat was at the time of its execution, and still is,.the homestead of Sarah D. Franks. She sets up that the mortgage is invalid so far as the homestead is concerned. The eyidence shows conclusively that she did not intend to join in a mortgage which would • include the homestead; that she made known her intention in this respect; that she was, however, unacquainted with the description of the land which constituted the homestead, and was induced to join in the mortgage by false representations that the homestead was not included. «
    The court granted a decree foreclosing the mortgage upon the homestead as well as the other property. She appeals.
    
      I. M. Preston and E. Keeler, for appellant.
    
      Sheecm <& MeCa/rn, for appellee.
   Adams, Ch. J.

The false representations were made by her husband, E. M. Franks, and one Frank Keenan. The representations were known to the persons making them to be false, and they were made for the „ -, . . ,, , - ,, purpose oi deceiving the appellant, and as the only means of obtaining her signature to a mortgage which should cover the homestead. If the mortgagee, the appellee, was a party to the fraud, the mortgage, so far as it covers 'the homestead, is of course invalid. The appellant contends that the appellee was a party to the fraud. She contends that Keenan was the appellee’s agent.

The evidence shows that the loan was negotiated by or through one Wilcox, who resided at Cedar Eapids and was engaged in the business of negotiating loans. Wilcox made an examination of the property afterward embraced in the mortgage. After the mortgage was drawn, which was done at Cedar Eapids, Franks was notified to meet Wilcox at Anamosa and bring his wife with him for the purpose of executing the mortgage. Franks went to Anamosa but did not take Ms wife with Mm. The mortgage was then banded by Wileox to Franks, who took it home witb bim for tbe purpose of executing it himself and procuring bis wife to join witb bim. When be was about to proceed to obtain bis wife’s signature be took Keenan witb him to assist bim in practicing upon ber whatever deception was necessary to conceal tbe fact that tbe mortgage embraced the- homestead and to induce ber to join in the execution of it in ignorance of such fact. They succeeded, and tbe paortgage was taken by Franks to Wilcox at Cedar Rapids, and tbe loan was obtained upon it.

There is not tbe slightest evidence, however, that Keenan was employed by Wilcox or the plaintiff company in tbe transaction, or was known by either Wilcox-or tbe company to have bad anything to do witb it, or that be bad, or undertook to have, anything to do witb it in behalf of tbe company. There was in fact nothing for the company to do through any agent between tbe time tbe mortgage was banded by Wilcox to Franks at Anamosa and tbe time it was returned by Franks to Wilcox at Cedar Rapids. There is a little evidence tending to show that Keenan bad acted for tbe company in other matters, but even this is disputed. Whatever tbe fact may be, there is no evidence that be acted for tbe company in. this transaction.

Tbe appellant insists that even if this is so tbe company cannot escape tbe effects of tbe fraud, because, as she insists, ber husband was tbe company’s agent.

In our opinion this position cannot be maintained. It was not tbe company’s business to procure tbe mortgage to be executed, and it did not undertake to do it. It simply demanded a mortgage executed by both husband and wife, as a condition of tbe loan. Franks and wife constituted one party to tbe contract, and tbe company tbe other. Tbe company bad no occasion to employ an agent to help Franks and wife, or either of them, to make their side of tbe contract intelligently, nor was tbe company charged witb any duty in this respect. This point was expressly ruled in Edgell v. Hagens, ante, 223.

But it is said that a wife cannot properly be said to concur in the execution of an instrument which she is induced to sign only by deception, and that the mortgage should be held void even though the mortgagee were not a party t'o the fraud.

But in the absence of fraud by the mortgagee, or mutual mistake, we must look to the instrument alone to determine whether .she concurred in it. Edgell v. Hagens, above cited. It cannot be contradicted by parol testimony. It is undoubtedly true that many married women execute deeds and mortgages in profound ignorance of their contents, and with unlimited confidence that their husbands will not mislead them. But they cannot be allowed to plead their ignorance and confidence, to the detriment of innocent parties. .

The decree must be

Affirmed.  