Page:Federal Reporter, 1st Series, Volume 2.djvu/49

 42 FEDEEAL EEPOETEH. �Neddo, his wife, for a decree of foreclosure of a certain mort- gage made by said defendants, on February 1, 1876, on 160 acres of land in Shawnee county, the same then and now being the homestead of defendants, which mortgage was made to J. ïï. Fairbanks to secure a negotiable promissory note, for the sum of $1,500, bearing even date herewith, and payable three years after date. Before the maturity of said note, and on March 27, 1877, the said Fairbanks indorsed said note and assigned said mortgage for a valuable consid- eration to this plaintifif, who had no notice of any infirmities in said papers, or of any equities against the same. �Louisa Neddo sets up in her answer to plaintiff'a bill that she was induced to sigu said mortgage, as also the note, under threats of personal violence from her husband, said A. P. Neddo; and that by reason of said duress she never gave her voluntary consent to said contract, and that the said mortgage is null and void. The evidence tends to show that on the day of the execution of the paper by Mrs. Neddo her husband threatened that if she did not sign said mortgage he would eut her throat ; that at the time he made the threat he had in his hand a large pocket knife, and the threats were made in the presence of a grown son and daughter of Mrs. Neddo ; that shortly af terwards, in a few minutes, the notary came into the room with the papers, and Mrs. Neddo signed and acknowledged the same in his presence ; that there was uothing in her appearance or manner to excite the suspicion of the notary, or cause him to think she was acting under duress or excitement ; that the money was borrowed and used mainly to pay off a prior mortgage on said homestead given by defendants. �The constitution of the state (section 9, art. 15) and statute (Geu. St. 473, § 1) provide that the homestead shall not be a;lienated without the joint consent of husband and wife. The constitutional and statutory provision makes the con- sent of both husband and wife necessary to the validity of the conveyance, and if the consent of either is wanting, the deed or mortgage is illegal in toto, and gives no title or lien whatever on the premises. In this respect it seems to change ����