
    Robert R. Durant et al v. Elizabeth Davis.
    A married woman purchased a piece of land and borrowed the money to make the cash payment, executing- her note to the lender and promising to take a deed to her sole and separate use and then to give the lender a mortgage to secure the note. She paid for the land, took a deed as promised, but refused to make the mortgage. The lender filed a bill setting forth these facts and asking that the land he subjected. No defence was made, the bill was taken for confessed and a decree of sale, rendered. The woman having become discovert, filed her bill of review for error apparent. The defendant demurred. Held :
    1. The using of borrowed money to pay for land, neither gives to the lender the right to be subrogated to the vendor’s lien, nor does it create in his favor a resulting trust.
    2. The promise to make the mortgage was void under the statute, and although the failure to comply is a fraud, yet it is one against which the courts cannot relieve.
    3. The original decree subjecting the land was clearly erroneous, being manifestly inconsistent with the case stated in the bill.
    PROM SHELBY.
    Appeal from decree of the Chancery Court, September Term, 1868. Hon. William; M. Smith, Ch.
    
      D. D. Mybes and T. W. BrowN, for complainants.
    T. B. Micou, for defendants.
   Deaderick, J.,

delivered the opinion of the court.

Elizabeth Davis filed her bill in the Chancery Court of Memphis to review and reverse a decree against her made in said court, at the November Term, 1867, in favor of the defendants.

The bill (which for the purposes of review is considered a part of the decree) shows upon its face that the complainant Elizabeth Davis borrowed $505 of the defendant Susannah, wife of R. R. Durant, for which she executed her note to said Susannah. That the money was borrowed to enable her to make a payment upon a lot in Memphis, which she had contracted to buy; that complainant at the time she borrowed the money and executed the note was a married woman; that she paid $108 and refused to pay the balance. Judgment, pro confesso, was taken against complainant, she having been served with process, and failed to answer, and thereupon the court, on December 12, 1*867, rendered a decree against her for the amount of the note and interest, and ordered and adjudged that the clerk and master should sell said lot between the first and . tenth days 'of January, 1868, on a credit, etc.

The lot was accordingly sold on January 9, 1868, and said Susannah became the purchaser at the price of $612.32, being the amount of her debt and interest, and the costs, and upon the master’s report of the sale it was confirmed and a, writ of possession was ordered to issue.- Complainant then filed her bill of review in said court, June 26, 1868, setting out the proceedings herein before recited, and alleging for error apparent upon the face of the decree, that it appeared that no time to pay the money into the court before the sale of the lot, was given. And also relying upon the fact that the decree showed she was a married woman at the time of the execution of the note and rendition of the decree, and for these errors she prayed that said decree should be reviewed and reversed.

The defendants in the bill of review demurred, and the demurrer was overruled and decree made reversing the decree in the original bill from which they appealed to. this court.

Upon the facts disclosed upon the face of the bill, we are satisfied that the Chancellor erred in making the decree complained of against defendant Davis. It was clear she was a married woman at the. time of the execution of the note, and could not thus enter into any obligation binding upon her at law or in equity. Although the money borrowed was used in payment, in part, for the lot it was so used as the funds of Davis, and not of the lender, and no trust resulted to the said Susannah in -the land, from the transaction. For this reason we think the decree of the Chancellor was correct, and we affirm it.

A decree will be entered here reversing the decree in the original cause and adjudging all the costs in both causes against the complainant in the bill of review.

On rebearing,

FreemaN, J.,

delivered the following opinion:

An opinion was delivered in _this case at the last term, affirming the decree of the Chancellor, overruling- the demurrer to the bill of review filed by Mrs. Davis. A petition for rehearing was filed, which was not examined then for want of time. We have now re-examined the case and feel no hesitancy in reaffirming the views announced in the former opinion.

Without setting out the elaborate statements of the original bill, or the bill of review, which we may here say are both subject to the objection presented in' one of the demurrers filed, of being exceedingly argumentative. The points made in the record may be briefly stated to be as follows:

The original bill shows on its face, that some years since, Elizabeth Davis, then a married woman, desired to purchase a certain lot in the city of Memphis. Not having the money to make the cash payment of $500, she applied to Mrs. Durant, then Mrs. Holroyd, a widow, for the loan of that sum, promising to have the lot conveyed to her for her sole and separate use, free from the control of Davis the husband, and then to give Mrs. Holroyd a deed of trust or mortgage on the lot to secure the amount so borrowed. In addition to this it seems that some $60 was borrowed to be used for some other purpose. The note of Mrs. Davis was given for this money, which, on being told by an attorney that it was not binding on her by reason of her coverture, was procured to be also signed some time afterward by Davis the husband. Mrs. Davis got the conveyance for the lot to her separate use, paying the balance of the purchase money, but as the bill alleges refused or failed to give the mortgage or deed of trust.

Her husband having died before commencement of this suit, the bill alleges that she refuses to pay the note, and insists that she is not bound by it because of her coverture. Upon this state of facts, a decree is sought subjecting the lot to payment of this note, cither on the ground of a resulting trust as having paid the purchase money to the extent of $500, or of being substituted to the vendor’s lien for this sum. The bill was taken for confessed and after an account of the amount due on the note, a decree was rendered declaring a lien on the lot, and ordering the same sold, which was done. Thereupon Mrs. Davis filed (he bill of review, to which there was a demurrer, which the Chancellor overruled, from which there is an appeal to this court.

This is clearly no case for substitution to the vendor’s lien. The right of substitution grows ordinarily out of a discharge by one joint debtor, of a debt for which the other was primarily liable, as in case of payment by a surety, he is entitled to be subrogated to all the liens and securities held by his creditor, for his reimbursement: 2d Lead. Cases in Eq., top of page 240. Nothing of the kind is found here, nor, in fact any element out of which the right of subrogation can arise. The money was not paid-in discharge of the debt due the vendor, which was a lien on the land; on the contrary, it was the cash payment agreed to be made. Again, it was a loan to the purchaser on security of her own note, with a promise of a deed of trust, repelling the idea of discharging the purchaser’s debt, and looking to substitution as the means of reimbursement. In a word, the simple question is, whether a party, who loans another a sum of money to pay a debt, and takes his or her note for its payment, with a promise of a deed of trust to secure it also, by this transaction entitles himself in addition to be substituted to the right of the creditor whose debt has been paid by the money loaned. To this question we take it, there can be but one answer, and that in the negative.

There is equally as little room to maintain the position, that the facts raise a resulting trust in favor of complainant in the original bill. It is a case simply of a promise by a married woman to give a mortgage or a deed of trust to secure the payment of money loaned, for which she has given her promissory note. That this promise has been violated is cretainly true on the facts in this record, but how this can raise a resulting trust, simply because the money so loaned was paid on a lot purchased by the borrower, we have been unable to see. It is insisted however, that this is a case of outrageous fraud, and therefore a court of equity must give relief. It certainly has some of the worst- elements of bad faith, but no more than in any other case where a party promises that which the law will not enforce, and refuses to comply with his promise. It is not such fraud as a court of equity can relieve against, unless we assume that the courts are authorized to declare such a promise, as is here shown, to be binding, and enforce it, notwithstanding the long settled principle that such a contract of a married woman is not binding, either at law or in equity. In fact, the promise to give the deed of trust on land, would not he enforced in any court, either against a married woman or a party free from disability, not being in writing. It had no binding legal force when made, and it was the folly of the other party to trust to it, against which the courts of equity can give no relief.

Looking then to the allegations of the original bill, as we can do on bill of review, and comparing it with the decree, we can see clearly that the decree is not warranted by the case made in the bill, which constitutes error of law apparent on the face of the decree. Eaton v. Dickinson, adm’r, 3 Sneed, 401. No decree was warranted, on the note against the married woman, from the allegations of the bill itself, and no lien whatever in any form, or right to sell the lot for satisfaction of the debt, could arise from said allegations. The decree holds her liable on the note, establishes a lien on the lot for its payment, and in these particulars, being inconsistent with the complainant’s case as set out in her bill, not warranted by it, the Chancellor properly overruled the demurrer, and we affirm his decree.  