Remington

An agreement was made between plaintiff and defendant C. P. Higgins for the purchase from plaintiff of a parcel of land *623 at the price of $1,200; $300 to be paid in hand, and the payment of the balance to be secured by mortgage on the premises. At the request of C. P. Higgins, plaintiff executed a deed of the premises to A. J. Higgins, wife of C. P. Higgins, the latter of whom paid the $300 as agreed, and the wife executed promissory notes for the balance, and a mortgage of the lands to secure the payment of the same. The husband did not join in the execution of the notes or mortgage, but they were executed at his request and in pursuance of the agreement between himself and plaintiff. Both husband and wife took possession of the land, and have ever since occupied it. Subsequently the husband paid $108 interest on the debt; the balance not having been paid, plaintiff brings his action for a foreclosure. The defendant Meredith is a junior incumbrancer with full notice.

The defense is, that by the conveyance to the wife the property became the community property of the husband and wife; that under § 167' of the Civil Code, which provides that the community property is not liable…

If the wife, who received the conveyance and executed the notes and mortgage, had been capable of executing a valid mortgage upon the premises, and had failed to do so through defective execution, there would be no difficulty in holding the mortgage so executed to be an equitable mortgage. But that is not this case. Here the wife had no legal or equitable title to the land, and could not execute a valid mortgage upon it; and as the instrument which she did execute was void, I do not think that it constituted a waiver of the plaintiff’s right to a vendor’s lien upon the premises for the unpaid purchase-money. (Davis v. Cox, 6 Ind. 484 .)

Under our Code the effect of the plaintiff’s deed was the same as if it had been executed to the husband. And the transaction must be treated as it would be if the land had been conveyed to him, and his wife had executed a mortgage upon it to secure the payment of the purchase-money. She purchased nothing, obtained no title to anything, and gave no security for *625 the payment of anything. Under the circumstances it seems to me that she might, with perfect propriety, be left out of view altogether, and the case be considered as one in which the…