Page:Federal Reporter, 1st Series, Volume 3.djvu/389

 383 FEDERAL ' EEPOBTEB. �alone ; Aat Mrs. Werges undeniably executed the mortgage, and lier genuine signature to if. ; that the real consideration of the mortgage was the debt of $6,000 due from the ûrm of Werges & Kreuger to the complainant; that the note was at most but evidence of that debt; and that the real purpose and intention of Mrs. Werges in giving the mortgage was to secure the debt. Hence, it ia argued that the provision of the mortgage, that it should stand as a security for the payment of the note of Casper A. Werges to B. H. Kreuger, was more a matter of form than substance, and that it can be no wrong to Mrs. Werges to compel payment by the sale of lier prop- erty of the very debt that she purposely pledged it to pay. �It will be seen that this argument is exceedingly ingenions jnd plausible. It is, however, in my judgment, untenable. �Mrs. Werges saw fit to pledge her land by mortgage to pay a note executed by her husband to Kreuger. Non constat that she would have mortgaged her property in any other form. If she had been asked to give a mortgage to secure ths debt of the firm of Kreuger & Werges to the plaintiff, she might, for aught we know, bave refused. Parties may con- traot in a certain form, and they bave a right to do so. The law cannot change their contract, and hold them to the sub- stance of it in a wholly different form. �The debt in this case was not Mrs. Werges'. The consid- eration did not move to her. Her property is bound for it only by virtue of her express contract. She cannot be made liable on the ground that she received the consideration, and therefore that, irrespeetive of the written evidence, she ia bound to pay the debt. She can be made liable for the debt only in pursuance of the terms of her written contract, and not otherwise. In order to have fixed her liability, or rather that of her property, it would bave been necessary, as the contract was actually made for Mersman, to present the note to Casper Werges, the maker, and protest it for non- payment. Setting aside the note as a part of the contract, and proceeding directly upon the mortgage, ik) demand, notice, or protest was necessary. In a word, by treating the note as a nullity, and proceeding directly on the mortgage, a ����