¶1On Petition eor a Rehearing.
¶2It was held by this court, in the case of Dodge v. Kinzy, 101 Ind. 102, that, where a husband and wife hold land as tenants by entirety, and the wife unites with the husband in the execution of a mortgage on the land to-secure the payment of the husband’s debt, such a mortgage is. a “ contract of suretyship ” on the part of the wife, and is void as to her, under the provisions of section 5119, R. S. 1881, herein above set out, and that, owing to the peculiar nature of the estate by which it is held, the mortgage would also, in such an event, be void as against the husband.
¶3It is claimed that the conclusion, heretofore reached in this-case, is utterly inconsistent with the doctrine of that case, as-well as with a proper and further construction of said section 5119, as applicable to the facts now again before us. This-claim is based upon the inference that whatever is prohibited is void, and that, as a mortgage which amounts to a contract of suretyship, entered into by the wife, is prohibited, such a, mortgage is-void for want of power in the wife to execute it, and that as there is no power in her to execute such mortgage, it is void as against all having an interest in the mortgaged property.
¶4*202But by section 5117, of the same revision of our statutes, si married woman is as fully empowered to mortgage her real estate, with the concurrence of her husband, as she has ever been under any other statute of the State, and the only limitation on her power in that respect is that which is imposed ’by section 5119, which, in effect, declares that where a married woman executes a mortgage, which is, in its essential .qualities, only a contract of suretyship, it is void as to her. "Why does this section declare that a contract of suretyship «entered into by a married woman, in disregard of its provisions, is void only as to her, if a broader meaning was intended by its enactment?
¶5There is nothing in the accompanying sections, which requires us to give this declaration a broader meaning than the words fairly imply. Hence we have construed, and continue to construe, the provision against married women becoming sureties as intended for their protection alone. All provisions imposing disabilities and in derogation of equal rights ought to be strictly construed.
¶6In the case of Dodge v. Kinzy, supra,it was the wife herself, acting in conjunction with her husband, who sought to have the mortgage set aside. In the present case, it is subsequent purchasers of the mortgaged property, with notice, who are seeking to have the mortgage annulled. The essential distinction between the two cases is, therefore, too obvious to require further illustration.
¶7Much confusion has been produced, and is persistently perpetuated, by the frequent use of the word “void,” both in the statutes and in the decided cases, when the word “ voidable” would have been more appropriate, and hence the word “ void ” has often to be construed as in effect meaning “ voidable” only.
¶8Prior to 'the enactment of the sections of the statute referred to in this case, the promissory note of a married woman was usually classified as a void, obligation, yet we have frequently held, while the code of 1852 was in force, that, where *203.a married woman failed to plead her coverture in an action against her upon her note, and judgment was entered in consequence, the judgment was not void, but only, under certain circumstances, voidable. Long v. Dixon, 55 Ind. 352; Burk v. Hill, 55 Ind. 419; Emmett v. Yandes, 60 Ind. 548; Gall v. Fryberger, 75 Ind. 98; Wright v. Wright, 97 Ind. 444.
¶9The petition for a rehearing is overruled.
¶10Filed May 14, 1887.