Johnston v. Taylor

The only defect in the complaint that is available to the defendant on the demurrer, is, that in. stating the execution of the mortgage by the wife, the plaintiff says that it was done by virtue of a power of attorney, and not by herself. If he had omitted the allegation that it was by an attorney, it would then have been merely proof to charge the defendant as mortgagor, and could not have been taken advantage of on demurrer; but as the plaintiff has set forth, in the complaint, that the wife executed the mortgage by an attorney, the objection may be taken by demurrer that a married woman cannot execute a deed by power of attorney.

In ordinary cases such a deed is not valid, because the requirement of the statute, as to the acknowledgment, is not observed, and because a power of attorney, executed by a married woman, except in the cases provided by statute, is a nullity.

A married woman, residing in this State, cannot execute a deed by an attorney; and if a deed or mortgage is so executed, and the same is sought to be enforced as a legal instrument, the plaintiff should show, in his complaint, that the execution of the same by the attorney was in the case provided by law. Unless he comes within that class, the execution of the deed is of no value.

By averring the execution to be by an attorney, I think the *340plaintiff was bound to show, in the complaint, by what authority the attorney acted.

The defendant is entitled to judgment on the demurrer, with leave to the plaintiff to amend on payment of costs.