
    Evans v. Beaver et al.
    
      Conflict of laws.
    
    A mortgage executed in the state of Indiana by a married woman domiciled in that state, on real estate situate in Ohio, to secure an obligation as surety to be performed in the state of Indiana, where she is without capacity to make such a contract, is void here as well as in Indiana.
    (Decided March 7, 1893.)
    Error to the Circuit Court of Defiance county.
    On May 26,1882, Edward D. Beaver executed his certain promissory notes amounting to $2,100.00, payable to the plaintiff, Amos S. Evans, at The Hamilton National Bank, Ft. Wayne, Indiana. The notes were given in payment for a stock of goods that had been purchased of the plaintiff by Weaver for Marion A. Webb, and the latter assumed the payment of the notes; and to secure the payment of the same, his wife, May H. Webb, as surety of her husband only, executed a mortgage upon certain real estate, belonging to her as her separate estate, situate in Defiange county, Ohio. May H. Webb and her husband were at the time and continued to be citizens of and residing in the state of Indiana, by the laws of which state, a married woman has no capacity to bind herself as the surety of another, and all such obligations assumed by a married woman are declared to be void. The mortgage as well as the notes were made in that state, and the notes, as before stated, stipulated for payment at The Hamilton National Bank, located in that state. The notes not being paid, suit was brought in Defiance county for the foreclosure of the mortgage; and the incapacity of a married woman to bind herself by the laws of Indiana as a surety, was relied on as a defense. On appeal the circuit court held the mortgage void and dismissed the petition. Error is prosecuted here to reverse this judgment.
    
      
      Henry Newbegin and B. B. Kingsbury, for plaintiff in error.
    
      N. G. Johnston, Harris & Cameron, C. S. Bentley and Hill & Hibbard, for defendants in error.
   By the Court.

May H. Webb was not originally liable upon the notes; but her husband assumed their payment, and she as his surety pledged her separate estate to secure that obligation. ¿ It is well settled that a mortgage is only a security for the performance of some obligation, and if that is void, it is of no avail."] All the parties to the notes as well as to the mortgage resided at the time in the state of Indiana, and performance, that is to say, payment, was to be made in that state. It was in every sense an Indiana contract; and, as to the capacity of the parties to make it, must be governed by the laws of that state. Story’s Conflict of Laws, §§ 65, 66, 66a, 242, 243; Lockwood v. Mitchell, 7 Ohio St., 388, 405; Wharton on Conflict of Raws, §§ 398, 399,400. By the laws of that state a married woman is incapable of making a contract, binding her as surety or guarantor in any form; it is declared void. Hence, though a married woman is under no such disability in this state, yet the mortgage of May H. Webb, having been executed in the state of Indiana, where she was then domiciled, to secure an obligation to be performed in that state, and, by whose laws she had no capacity to make it, is void here as well as .in that state.

Judgment affirmed.  